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Corey Lewandowski case: Is there a chance he won’t be prosecuted?

The Jupiter, Fla. police department released a video that appears to show Donald Trump's campaign manager grabbing Breitbart reporter Michelle Fields. (Video: Jupiter Police Department)

Three weeks ago, political reporter Michelle Fields, formerly of Breitbart News, alleged that she was forcefully grabbed and pulled by Donald Trump’s campaign manager, Corey Lewandowski, as she attempted to ask the candidate a question after a news conference in Florida.

The incident, initially disputed by the Trump campaign, was captured on the building’s surveillance cameras, and on Tuesday the Jupiter, Fla., Police Department charged Lewandowski with simple battery, a misdemeanor. The charges thrust the incident back to the forefront of the presidential race and triggered what a half-dozen prosecutors and defense lawyers in Florida said could potentially be a lengthy legal process.

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Although several questioned the decision by police to file charges, most legal experts interviewed agreed that the available evidence more than amounted to probable cause to charge Lewandowski: The video evidence appears to support Fields’s story, she documented the bruises she says she got during the incident, and she was actively cooperating with investigators.

“She made a formal complaint, so that is why they handled it the way that they did,” said Barry Maxwell, a former sheriff’s deputy and state prosecutor who now works as a defense attorney in West Palm Beach, Fla. “They have a complaining witness, so the police had to address the complaints of the alleged victim.”

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In Florida, police have two options: The first is to hand a case file over to the state attorney’s office so prosecutors can decided whether to file charges. Or, as was the case here, the police can determine they have probable cause to file charges and issue a “notice to appear” before the prosecutors have reviewed the evidence.

University of Florida law professor Kenneth Nunn discusses the next possible steps for Trump campaign manager Corey Lewandowski, who is charged with battery. (Video: Jayne Orenstein/The Washington Post)

But the police department’s issuing charges does not necessarily mean that the state attorney will decide to move forward with full prosecution. And a spokesman for the state prosecutor’s office said Tuesday night that it has yet to decide how to handle this case.

“Law enforcement charges on a probable-cause standard,” said Mike Edmondson, a spokesman for State Attorney Dave Aronberg, who added that his office does not have the case file yet. “The state has to proceed on a legally higher standard of proof beyond a reasonable doubt, as well to whether there is a reasonable likelihood of a conviction. Both legal and ethical standards for the state.”

“At this point the state has not received the case,” Edmondson said.

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FILE - In this Aug. 25, 2015 file photo, Republican presidential candidate Donald Trump, right, walks with his campaign manager Corey Lewandowski after speaking at a news conference in Dubuque, Iowa. Breitbart News reporter Michelle Fields, who said that she was grabbed by Lewandowski as she attempted to question Trump in Florida on Tuesday, March 8, has resigned from the conservative website, saying that she can't work for an organization that doesn't support her. (AP Photo/Charlie Neibergall, File)

In the meantime, the investigation by Jupiter detectives will continue. For example, it is unclear whether Lewandowski or any of the Secret Service agents present for the incident have been formally interviewed. Officials with the Jupiter Police Department declined to comment on whether they interviewed Lewandowski. An official with the Secret Service, who requested anonymity to talk about an active investigation, said the department does not plan to discuss the incident or whether its officers are cooperating with the investigation.

If the state attorney’s office pursues the charges, it would kick off a months-long legal process, including the opportunity for Lewandowski and his attorneys to strike a deal with prosecutors to have the charges dismissed. Under Florida’s victim’s rights laws, Fields is entitled to have some say in whether prosecutors move forward, reach an out-of-court settlement or drop the charges.

Under Florida law, battery is committed when one person “actually and intentionally touches or strikes another person.”

If convicted, Lewandowski faces up to a year in county jail, although area lawyers say that it is highly unlikely he would ever do jail time. Lewandowski could strike a deal with prosecutors to attend an anger management course or another type of diversion program, in what is known as a pretrial intervention. Were he to go to trial and be convicted by a jury, the lawyers said he would most likely be sentenced to probation and perhaps community service.

“I’ve never seen someone get a year in jail for something like this; realistically it never happens,” said Marc Shiner, a former state and federal prosecutor in Palm Beach County who now works as a defense lawyer. “If the gentlemen winds up looking at a year in jail, that certainly will be a sign this case was deeply politicized.”

Lewandowski and Trump have signaled that, if the case is taken to court, they plan to fight the charges. The campaign issued a statement declaring Lewandowski “absolutely innocent” and saying it is “completely confident that he will be exonerated.”

While they mostly agreed that there was probable cause to arrest Lewandowski, the half-dozen Florida lawyers interviewed by The Post agreed that it seems unlikely, if the case were to be heard by a jury, that Trump’s campaign manager would be convicted.

“Police need probable cause, but a jury needs beyond a reasonable doubt, which are very different things,” Shiner said.

Shiner and others agreed that Lewandowski and his attorneys, who did not respond to requests for comment, will probably argue that the campaign manager feared for Trump’s safety in the incident.

“If you plug it into the legal definition of a battery, yes, it fits,” said Stuart Kaplan, a former FBI special agent now working as a criminal defense and civil litigation lawyer based in Palm Beach Gardens. “But the reality is this is not a scenario where anybody in their right mind would ever entertain charging someone with a crime.” He said it is “inconceivable” that the charges would result in a jury trial.

Kaplan compared the incident to a bouncer in a nightclub grabbing someone who dances too close to the stage and pushing the person backward. Another lawyer likened it to a ticket collector at a concert venue or sports arena grabbing the arm of someone who attempted to walk past without first showing a ticket. A third Florida-based lawyer, noting Trump’s celebrity status and the fact that the incident occurred at an event where Trump was being approached not only by reporters but also by autograph seekers, compared it to the personal assistant of a celebrity grabbing a fan or paparazzi member who got too close.

In each of those cases, the lawyers said, if a complaint was filed by the person touched, there would likely be probable cause for battery charges, but it would be unlikely that a jury would conclude the actions were unreasonable in the context of the specific situation.

“The bigger issue to me is the fact that we’re talking about a political event. What type of security risks were going on right then and there?” said Brian Gabriel, a former assistant state attorney who now works as a criminal defense lawyer in Jupiter.

“If [Lewandowski] says he perceived some sort of threat to Trump, he could make the argument that it was reasonable for him to act in this fashion,” Gabriel said. “The prosecutors would have to convince a jury beyond a reasonable doubt that … his actions were unreasonable for someone charged with helping with the security of a presidential candidate.”

“I don’t see that,” he added. “The prosecutors, if they move forward, have a pretty uphill battle.”

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