"Trump has no way to escape at this point": Ex-DOJ prosecutor says new charges spell real trouble

Kenneth McCallion is a former Justice Department prosecutor who also worked for the New York State Attorney General

By Chauncey DeVega

Senior Writer

Published August 1, 2023 5:45AM (EDT)

Former U.S. President Donald Trump speaks to supporters during a political rally while campaigning for the GOP nomination in the 2024 election at Erie Insurance Arena on July 29, 2023 in Erie, Pennsylvania. (Jeff Swensen/Getty Images)
Former U.S. President Donald Trump speaks to supporters during a political rally while campaigning for the GOP nomination in the 2024 election at Erie Insurance Arena on July 29, 2023 in Erie, Pennsylvania. (Jeff Swensen/Getty Images)

It would be an ironic form of justice if Donald Trump was brought down suddenly and unexpectedly and then pushed out of public life. Given the many criminal trials Trump is facing – and the indictments that are imminent — such an outcome appears, at least for now, increasingly more likely than not.

In an interview last weekend, Georgia's Fulton County District Attorney Fani Willis told CNN that her investigation into Trump and his cabal's attempts to rig the 2020 presidential vote in Georgia has concluded and she would announce an indictment decision by September. Days earlier, the Department of Justice (DOJ) released superseding indictments in the Mar-a-Lago classified documents case, this time ensnaring yet another low-level Trump employee in legal jeopardy. In support of those new charges, there is a video recording of Trump's employees discussing how "the boss" wanted the evidence of his alleged crimes destroyed to keep it from federal investigators. This recording is potentially a kill shot for any claims by Trump that he was ignorant or otherwise did not know that possessing classified and top secret documents was illegal. 

Trump will likely also soon be indicted and arrested by the DOJ and special counsel Jack Smith and his team of prosecutors for alleged crimes connected to the Jan. 6 coup attempt and nationwide conspiracy to end multiracial democracy by overturning the results of the 2020 election. And there is still a third impending trial in Manhattan for financial crimes and fraud related to his affair with adult film star Stormy Daniels. 

To make better sense of all of these charges against Donald Trump and what is likely to happen next, I recently spoke with Kenneth McCallion, a former Justice Department prosecutor who also worked for the New York State Attorney General's office as a prosecutor on Trump racketeering cases. As an assistant U.S. attorney and special assistant U.S. attorney, he focused on international fraud and counterintelligence cases that often involved Russian organized crime.

In this wide-ranging conversation, McCallion explains how the legal walls are quickly closing in on Trump and that he now has few means of escape. McCallion also reflects on his personal experience investigating Trump and his businesses and how he believes that the ex-president, for a variety of emotional and psychological reasons, does not really understand the seriousness (and personal consequences) of the criminal charges he is facing trial for.

This interview has been lightly edited for clarity:

I almost always start my conversations here at Salon with a question about emotions and the human dimension of this time of great troubles here in the United States with the Trumpocene and how we got here. I will break that rule and start with an observation. Given the legal developments of the last week or so it certainly appears that Donald Trump is in real big trouble.

The last nails in his legal coffin are being hammered home by Jack Smith and his colleagues in the Justice Department. They're being exceedingly thorough, which is what you have to do when you are investigating an ex-president. But as a former federal prosecutor, I know all too well that stretching out the timeframe of an investigation doesn't necessarily lead to a stronger case. But in this particular case involving Trump, it looks like Special Counsel Smith and his colleagues hit the jackpot when the managed to force or induce several cooperating witnesses to come forward. They were also able to get some key additional pieces of evidence to support their obstruction of justice charge, particularly the attempt to destroy the security tapes there at Mar a Lago.

The main significance, as I see it, of the most recent indictment on the classified documents is that Trump can no longer protest or claim innocence, and the argument that he honestly believed he had a right to keep them has been completely vaporized. When you hide boxes of classified documents after being put on notice by the government that they should be returned, this is called "consciousness of guilt" and you are guilty of obstruction of justice in addition to the underlying crime of illegal possession of classified documents. Also, the voice recordings also conclusively show that Trump had clear, conscious intent and state of mind to obstruct justice, to keep the documents, to hide them, and then lie about them to law enforcement and other government agents.

We may never really know what Trump's psychological motivation may have been to hold onto the documents even while risking everything if his scheme was uncovered (which it was). But his motivation is not really important now. Maybe he wanted to keep them because he is obsessed with having the documents as some type of memorabilia to stroke his ego. Alternatively, Trump's motivations may have been more nefarious. Some of these documents are purported to show US weaknesses and battle plans for a war against Iran, and he may have wanted to sell them. In the final analysis, however, the tape recordings showing that Trump was bragging to visitors about having these top secret documents is more than enough to convince a jury that he is guilty on all counts  

What took Attorney General Merrick Garland and the Department of Justice so long given the obvious and abundant evidence of Trump and his cabal's alleged criminality and what is a de facto conspiracy?

Merrick Garland dithered away valuable time in the Trump investigation before doing what he should have done in the first place, which was to appoint a special prosecutor of Jack Smith's caliber. Garland, even as a former federal judge, unfortunately, has his finger up testing the winds of public opinion and waiting for it to swing in favor of government prosecution. That shouldn't be a consideration. You don't take public opinion polls when you catch a criminal; you don't wait for the public opinion polls to come in as to whether you proceed or not. Prosecutors are obligated to file a criminal complaint when they have more than sufficient evidence to charge and successfully prosecute the target of an investigation.

"They carefully built their case witness by witness, brick by brick. That's why Trump has no way to escape at this point. All he can do now is run around in circles in a closed room that is quickly becoming smaller and smaller."

In Trump's case, the evidence is overwhelming with regard to both the classified document charges and the January 6 investigation into the broad-ranging conspiracy to overturn the November 2020 election results. Given the fact that the investigation was such a complex and many-headed Hydra involving so many states, I can see how the complexity of that could have led to a longer timeframe for the prosecution. But the Mar a Lago document case is completely straightforward. It's the equivalent of catching the bank robber as he's leaving the bank with a sack full of cash. There are really no excuses for any delay. Donald Trump is indicted, and the legal process should move swiftly forward.

I will admit that given Jack Smith's investigations, and especially the Jan. 6 imminent indictments and the new obstruction charges, even I am starting to lean more towards optimism than pessimism — at least about Trump being put in prison or otherwise removed from public life. My optimism makes me nervous. Please help me modulate those feelings.

Well, I'm feeling the same way.

When the Manhattan DA came down with his indictment, as meritorious as it was, it's still kind of a toss-up. It's anybody's guess how that's going to ultimately play out. And we don't fully know what's happening down in Atlanta. We are waiting for the imminent Jan. 6 indictment. But what we do have concretely are at least two iterations of an indictment relating to the top secret records. Those indictments are nailed down tight, Trump can bob and weave and try and bluff, but he's really cornered at this point. I have to think that to the extent that there are any swing voters left in the US, that they have to really be doubting the wisdom of putting Trump back in office given that he has been such a disgrace and threat to the republic.

We need your help to stay independent

I hope that there are even some Trump MAGA voters who won't vote for Trump again given all that we now know about him as revealed by the federal and state indictments pending against him The 2024 Election may turn out to be close, but when push comes to shove and the chips are down, and as crazy as this country might be, the American people are not going to reelect Trump.

The new charges against Trump and his underlings include allegations of obstruction of justice and trying to conceal and/or destroy evidence. On a surveillance recording, Trump's underlings describe him as "the Boss." It sounds like a mafia movie. As a former federal prosecutor, help me parse through that detail. What does that language indicate or not?

I think that those few words on the voice recordings speak volumes about how the Trump organization really operates.  As you know, I was a prosecutor with the organized crime section of the Justice Department for many years. We put away a number of mafia bosses that we didn't have a lot of direct evidence against. But we did have some tape recordings and some cooperating witnesses who were lower lower-level members or associates of the crime family. These witnesses and tape recordings confirm that the orders came from the top - from the boss or the capo, or the consigliere of the family. The Trump organization is no different. Donald Trump is the boss and runs his organization like any organized crime group.  Jack Smith and other federal prosecutors are going to put aside any of the political implications of their prosecution of Trump, and they will be able successfully sell a narrative to the jury that the Trump organization is just like another organized crime operation that needs to be taken apart from the top down.

What is the approach to taking down an organized crime operation? Where do you start? What is going on with the underlings and lieutenants in the "Trump crime family"?

When you have the consiglieres or attorneys starting to flip and offer their cooperation with the government prosecutors, you know that the organization is full of holes and starting to sink. No lawyer wants to go to jail or lose their license and face criminal prosecution just to help a client. At this point, Trump has no idea as to who he can trust. The government slowly but surely has brought a number of key witnesses over to its side, either through plea deals, immunity deals, or whatever it took. They carefully built their case witness by witness, brick by brick. That's why Trump has no way to escape at this point. All he can do now is run around in circles in a closed room that is quickly becoming smaller and smaller.

You have had these conversations. How do you approach one of Trump's underlings such as Rudy Giuliani for example? What do you say to get them to "flip" against Boss Trump?

Unfortunately, appealing to their sense of duty or responsibility for the public good and society doesn't work. You must have a very tight case against these underlings and co-conspirators before they will finally "flip" against the Boss. And then you have a conversation with them and their lawyers, which is called a "proffer." The witness must convince the prosecutors that their testimony will be sufficiently valuable to justify a grant of immunity or a favorable plea deal. The government prosecutor's approach is pretty standard: They tell the witness: "You have everything to gain and nothing to lose by cooperating with us. On the flip side, if you don't cooperate with us, you have everything to lose and really nothing to gain because Donald Trump is notoriously disloyal to those who are the most loyal to him. "The major weakness in the Trump Organization is that the relationships within the organization are completely transactional, with no real sense of loyalty or honor. This is and that is why the prosecutors have been so successful in converting Trump's co-conspirators into cooperating witnesses.  

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

The most disturbing thing about the federal investigation is that Rudy Giuliani might be given a free pass. I used to work with him, and he was an excellent federal prosecutor who's gone completely rogue. Now he's become such an embarrassment to the legal profession, and his conduct has been so shameful, that it would be a gross miscarriage of just if here were to get off completely Scot free.

How did Giuliani go from being "America's mayor" to being targeted in an investigation of Donald Trump for being part of a de facto coup?

I saw this when I was a prosecutor. Giuliani's one big flaw was that he was a publicity hound. He also had a bad history of leaking indictments before they were actually issued by grand juries; he was an off-the-record source to a lot of key people in the media. He played a very dangerous game as a prosecutor in order to get that level of publicity that in turn launched his political career. The problem is that Giuliani's craving for public attention never died. When he was out of the limelight, after being "America's mayor" and after showing his leadership qualities during the 9/11 crisis, he was unwilling to go into the semi-shadows and lay low like many former public officials choose to do. He made certain attempts to run for higher political office that didn't quite pan out. But when Trump came along, he saw an opportunity to gain the public attention and spotlight by being Trump's consigliere and being willing to do anything in that role to stay in the limelight.

The reporting indicates that the Georgia case against Trump will focus on a multistate racketeering operation. In terms of the law, what does that actually mean and involve? What should the public be expecting there?

The Atlanta investigation will probably have some overlap with Jack Smith's January 6 investigation. The original focus of the Atlanta case was on Trump's attempts to find another 12,000 or so votes in Georgia and his unlawful attempts to lean on Georgia public officials to deliver those votes with the help of Giuliani and others. But what the Georgia grand jury and district attorney are finding, and Jack Smith and the other federal grand juries are finding as well, is that this was a multistate conspiracy to swing the election because Georgia wouldn't have been enough in and of itself. The plan to steal the election also required recruiting fake electors and phony experts on voter fraud. In all, it was a very complex endeavor.

I've been involved with a number of racketeering cases. When you have an organization, which is otherwise legitimate, like the Republican Party or the Trump presidency, and when it's really being perverted and being used for unlawful or illegal uses, the acts of racketeering are basically civil or criminal actions that are of a continuous nature or over an extensive period of time. The RICO laws basically broke the back of Italian-American organized crime back in the 80s and 90s. Given how the Trump Organization is similar to those organized crime groups and the large number of people that willingly participated in the attempt to overturn the 2020 Election, the RICO statutes are an appropriate prosecution tool and a highly effective weapon in bringing a powerful crime "boss" to justice.

The RICO statutes are the equivalent of a nuclear legal weapon. It will be very hard for Trump and his underlings and co-conspirators to avoid the legal consequences of their ambitious conspiracy to undermine America's democratic institutions by overturning the results of the 2020 Election.

What types of conversations are Trump's attorneys having with him right now? Is a person such as Donald Trump given his personality and other issues, capable of even understanding the gravity of what is happening?

I've directly dealt with both Donald Trump and his first lawyer, the notorious Roy Cohn. Trump's current lawyers or unlikely to be telling him the full extent of his legal predicament at this point because he wouldn't listen to them and would probably fire them for trying. The truth is that in order for Trump to avoid doing hard jail time is that he has to cut a deal. Trump's predicament is much like that of Vice President Spiro Agnew during the Nixon presidency. Both of them were caught red-handed – Agnew for bribery and Trump for hiding secret documents. Agnew and his lawyers cut a deal with federal prosecutors whereby he agreed to resign the Vice Presidency and never to run for public office again, in return for a plea deal where he would plead guilty to certain charges but would never do jail time. This is the best kind of deal that Trump could hope for. He just doesn't know it yet. But this is what I expect will happen during jury selection in Trump's first criminal case to actually go to trial.  

At present, however, Trump is in a very dangerous position because his instincts are telling him that he should just double down and keep screaming "Witch Hunt."  A great part of Trump's success in life has been his ability to create his own reality and to deny the existence of anything that doesn't conform to his own personal vision of reality. My instincts and experience tell me that Donald Trump and the Justice Department and the prosecutors are on a collision course, and this will either be settled on the courthouse steps with a lenient plea deal, or it will have to be decided in the courtroom by a jury.

Are we going to wake up one day and it will be "breaking news" on all the news networks announcing that Donald Trump has cut a deal out of the blue because he doesn't want to go to jail and our "long national nightmare is over". Alternatively, does Trump go down swinging and fighting to the end? Because right now he is only amplifying his attacks. What do your instincts tell you?

Trump will take it down to the wire. Spiro Agnew did the same thing. The prosecutors were ready to start, they were picking a trial date, and then Agnew blinked.  So that'll be the moment when Trump either blinks or does not. I don't think Trump can withstand a trial. Only when Trump's first trial is imminent will Trump's ego permit him to even consider entering a guilty plea in return for no jail time. My guess is that Trump will never be wearing an orange jump suit, to the great disappointment of many of us.  

What would a deal potentially look like?

Trump will have to agree not to run for public office. He wouldn't get jail time. There would be a period of time where Trump would be confined in a gilded cage such as Mar a Lago.

As much as it should happen, and Trump most certainly deserves to be punished for his crimes to the fullest extent of the law, I just don't see an American president being put in prison.

I would like to see Donald Trump in prison too. The younger prosecutors likely want their pound of flesh from Trump. That is likely not going to happen. Ultimately, if the prosecution gets a guilty plea that would be a big deal and a major victory. Trump would have to enter what is known as "allocution" where he, in his own words, admits to what he did in terms of engaging in a conspiracy to overthrow the results of the election. In my opinion, for Trump and his supporters such as admission would be as good as him doing prison time. For security reasons, Trump cannot be put in the general prison population. An admission of guilt by Donald Trump to at least one or more of these crimes should be sufficient to put the Trump era behind us.

We have heard some version of this phrase repeatedly throughout the Age of Trump: "the walls are closing in!" Are the walls finally closing in on Donald Trump? Have they already closed in, and he just doesn't realize it yet?

The final nails are being put in the coffin and Donald Trump is trapped inside. Trump can bang away all he wants, but he is not getting out of this one. All of his crimes have been "unforced errors" brought on by his inflated ego and monumental hubris. He has been doing this his whole life, and always managed to a Houdini-like escape. But justice has finally caught up with him, and if he doesn't realize this, he will very soon.

By Chauncey DeVega

Chauncey DeVega is a senior politics writer for Salon. His essays can also be found at He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

MORE FROM Chauncey DeVega