Trump Has Options for Fighting Charges, but They Might Face Challenges

Former President Donald J. Trump and his advisers have been scrambling down to the wire to assemble a legal team for his first scheduled court appearance on Tuesday after being charged with mishandling classified documents and obstructing the government’s efforts to retrieve them.

But even when Mr. Trump figures out who will represent him, the lawyers will face a more significant challenge: how to rebut the charges in a criminal case in which their options may be limited.

While no one knows precisely how Mr. Trump will go about attacking the most serious charges he has faced, his options for using the legal system to delay the case, turn it into a political circus or paint himself as a victim of federal prosecutors are numerous and varied.

Even before his indictment, Mr. Trump, his allies and his lawyers had hinted at some of the arguments they could raise.

They include asserting that Mr. Trump had a right to take the documents from the White House and that he had declassified them before leaving office. They could accuse the prosecutors of misconduct or try to show that he was a victim of selective prosecution. And they could seek to have potentially damning evidence excluded from the trial or try to force the government to disclose classified material that it wants to keep secret.

But all of those claims could be difficult to sustain in court.

Samuel Buell, a former federal prosecutor and a law professor at Duke University, said it was difficult in general to have a federal indictment dismissed before going to trial, and that Mr. Trump and his lawyers would face an uphill battle in avoiding the case moving forward.

“Their options here are extremely limited,” Mr. Buell said, “and highly unlikely to prevent the case getting to a jury.”

The former president has long used lawyers as public relations aides, deploying them to make arguments that are often better suited to the campaign trail than the courtroom. But with the stakes immeasurably higher this time, the challenge will be to strike a balance between doing their client’s bidding and keeping to the rules of criminal procedure.

On Monday, Mr. Trump and his aides flew to Miami, where he has a golf club, and hunkered down to discuss possible new lawyers after James Trusty and John Rowley, the two who had been representing him most actively in dealing with the special counsel Jack Smith, resigned the day after charges were filed.

It remains unclear if any other lawyers would attend Tuesday’s arraignment with Todd Blanche, who is now representing Mr. Trump in both the Florida federal case and a separate case in Manhattan related to hush money payments to a porn star.

Christopher M. Kise, a lawyer on Mr. Trump’s broader team who is licensed in Florida, and Lindsey Halligan, who is also licensed there and was in a meeting with Justice Department officials shortly before the indictment was returned, are also possibilities, a person close to his team said.

One wild card is the way in which arguments are handled by Aileen M. Cannon, the federal judge in Florida who was assigned the case and who made rulings favorable to Mr. Trump at an earlier stage in the investigation.

Still, the evidence in the indictment itself is perhaps the most daunting problem facing whatever legal team Mr. Trump settles on.

Over the weekend, one Mr. Trump’s former lawyers, Timothy Parlatore, and a man who once served him as attorney general, William P. Barr, both appeared on television stating bluntly that the 38-count indictment of Mr. Trump and one of his aides was extremely thorough and presented a serious threat to the former president.

Quoting a conservative legal expert who writes for The National Review, Mr. Barr said that if even half the charges in it were true, then Mr. Trump was “toast.”

“It’s a very detailed indictment, and it’s very, very damning,” Mr. Barr told “Fox News Sunday.”

Many of the tactics available to Mr. Trump’s defense have drawbacks.

For months, as Mr. Smith’s prosecutors investigated the documents case, Mr. Trump’s lawyers and aides have insisted that the former president could take any documents he wanted from the White House under the Presidential Records Act — a misrepresentation of the actual Watergate-era law.

Mr. Barr swatted aside that argument on Fox, calling it “facially ridiculous.”

“They’re the government’s documents — they’re official records,” Mr. Barr said. “They’re not his personal records. Battle plans for an attack on another country or Defense Department documents about our capabilities are in no universe Donald J. Trump’s personal documents.”

Mr. Trump and his advisers have also repeatedly raised a separate claim: that he cannot be held accountable for having sensitive records with him at Mar-a-Lago, his private club and residence in Florida, or at other properties he owns, because he declassified everything before he left office.

To the dismay of some of his lawyers, Mr. Trump has said at times he could declassify records automatically, even with his mind.

But a recording of him cited in the indictment undercuts that claim.

In the recording, Mr. Trump can be heard telling visitors to his golf club in Bedminster, N.J., that he wanted to show them a “highly confidential” military plan, but was not able to because it was “secret.” He then apparently admits the document remained classified — undermining the notion that he declassified everything he had — and suggests the limits of his own powers to declassify records as a former president.

“See, as president I could have declassified it,” he says. “Now I can’t.”

Several legal experts said Mr. Trump’s lawyers would likely file what is known as a selective prosecution motion and claim that Mr. Trump had been unfairly charged when other politicians who faced investigation for their own handling of classified documents — most notably Hillary Clinton — were not.

Mr. Buell called any attempt to make such comparisons “a total loser,” noting that Mr. Trump’s case involved a large number of classified documents and significant evidence of obstruction — neither of which arose in the inquiry into Mrs. Clinton.

Still, Mr. Buell said the lawyers might pursue a selective prosecution claim “for P.R. purposes” alone.

“The politics are such that they will likely make the motion,” he said.

Another motion that Mr. Trump’s lawyers might attempt — and that Mr. Buell said would be difficult to win — is one asserting that the grand jury process that led to the indictment was somehow marred by prosecutorial misconduct.

Mr. Trump’s legal team has already filed a sealed motion in Federal District Court in Washington, where the inquiry began, requesting all of the grand jury transcripts, to look for examples of prosecutors misusing the grand jury, according to a person familiar with the matter.

That motion may have been rendered moot, however, after a grand jury in Florida voted on the indictment. And, as Mr. Buell said, the normal remedy for grand jury misconduct is disciplining any lawyers involved, not throwing out an indictment.

Two people familiar with Mr. Trump’s legal strategy said his lawyers may file a motion to suppress the notes that the lawyer M. Evan Corcoran made of his conversations with the former president about helping him comply with a federal subpoena from May 2022 demanding the return of all classified documents in his possession.

The notes, some of which Mr. Corcoran recorded on his iPhone and show Mr. Trump repeatedly trying to wiggle out of the subpoena, resulted in some of the most damaging evidence contained in the indictment.

Rachel Barkow, a professor at New York University School of Law, said Mr. Trump’s lawyers might have better luck with this motion than with any of the others. She cautioned, however, that the ultimate success of the tactic would rely on the strength of the initial sealed decision by Judge Beryl A. Howell in Washington to let the notes into the case through a provision known as the crime-fraud exception.

In a memo explaining why she set aside the typical protections of attorney-client privilege and granted prosecutors access to the notes, Judge Howell said that Mr. Trump likely misled Mr. Corcoran about steps he took to comply with the subpoena She added the government had made a “prima facie” showing that Mr. Trump had committed a criminal offense, according a person briefed on what she wrote.

Among the evidence Judge Howell considered in her ruling was a transcript of the audio notes that Mr. Corcoran made describing work he performed last June to respond to the subpoena, a key period for investigators, according to the person briefed on what she wrote. The judge reviewed the notes privately before deciding whether to turn them over to prosecutors.

Mr. Trump unsuccessfully fought against Mr. Corcoran having to produce his notes — or testify before a grand jury. Mr. Corcoran, who was not accused of any wrongdoing, argued against releasing a subset of the notes because they qualified as an “opinion work product,” meaning his own impressions and legal theories related to the case; prosecutors and the judge agreed.

Even if none of these attempts to derail the charges work, Ms. Barkow said, they could still sufficiently delay the case from going to trial until after the election. And if Mr. Trump were to win, he could have his new attorney general drop the matter or perhaps even pardon himself.

“I don’t think we’ll have this case resolved before the election,” she said, “and so the election may end up resolving it.”