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The Legal Consequences if Trump Announces He's Running
It's not going to help him
For months, former president Donald Trump has been hinting he will run for president again in 2024. Most recently on the day before the midterm elections, Trump said he would be making a “big announcement” on Tuesday, November 15, at his Mar-a-Lago resort. This may finally be the announcement of his candidacy – or it may be just another tease. And in light of his chosen candidates’ poor showings in the midterms, he may delay the announcement again. But it seems almost certain the announcement is coming.
Trump has already been under criminal investigation while serving as the de facto leader of the Republican party. But if he officially becomes a presidential candidate, we enter uncharted territory. Never before has a president’s attorney general had to decide whether to indict a candidate who may be that president’s most likely rival in the next election.
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Trump may believe that announcing his candidacy will help shield him from prosecution. It won’t. Legally, it should have no effect. Practically, the most likely result would be that attorney general Merrick Garland appoints a special counsel to take over the investigations of Trump – and that would be a good thing.
The Mar-a-Lago Documents Case: The federal criminal investigation where Trump may be in greatest jeopardy involves the documents he improperly took with him when he left the White House and then retained when the government tried to get them back. This investigation resulted in agents executing a search warrant at Trump’s Mar-a-Lago resort in Florida last August. They recovered a large amount of material, some of it classified and extremely sensitive.
A grand jury investigation is active and the evidence seems compelling. Trump has publicly admitted knowing he had the documents and has offered no viable defense. Potential federal charges include crimes related to the improper taking and concealing of federal records, obstruction of a federal proceeding (the investigations by the FBI and/or the National Archives), and false statements. I wrote in more detail about the search and the criminal investigation in this post.
The January 6 Investigation: The other significant federal investigation of the former president involves the events of January 6, 2021 and the efforts to overturn the presidential election. The Department of Justice has already prosecuted hundreds of those who rioted at the Capitol. From individual rioters, DOJ is now proceeding to more serious case. As of this writing, several members of the right-wing group the Oath Keepers, including their founder Stewart Rhodes, are on trial in D.C. for charges related to the Capitol riot, including seditious conspiracy.
For months this investigation has appeared to move slowly closer to Trump’s inner circle and potentially to Trump himself. Charges could be based not only on the assault on January 6 but also on other efforts to overturn the election, such as the scheme to send fake electors to Washington. Possible charges include conspiracy to defraud the United States, obstruction of a Congressional proceeding, seditious conspiracy, and rebellion or insurrection.
The January 6 Congressional Committee also has been examining these events, of course. It has held several very effective public hearings and likely will release a final report before the end of the year. It can’t bring criminal charges, although it could make criminal referrals to the Department of Justice. But if there are such referrals, what to do with them and whether to file criminal charges remains up to DOJ.
State criminal investigations: There are state criminal investigations pending as well. The most serious appears to be the investigation in Georgia by Fulton County District Attorney Fani Willis. She has convened a special grand jury and is aggressively investigating potential charges of election tampering and voter fraud, based on Trump’s effort to pressure Georgia state officials to overturn the results of the 2020 presidential election in that state. Some subpoenaed witnesses including Rudy Giuliani and Senator Lindsey Graham have been fighting to avoid testifying in the grand jury, so far without much success.
In New York, the District Attorney has brought a criminal case against the Trump Organization and its senior executive Allen Weisselberg for tax fraud. Weisselberg pleaded guilty and is cooperating with prosecutors. The trial of the Trump Organization has just gotten underway but was delayed when the government’s first witness came down with covid. This prosecution does not implicate Trump personally, although it has serious potential implications for his business. The District Attorney Alvin Bragg has said that a criminal investigation of Trump himself is still open, but there is little sign of any activity there.
Civil cases: New York Attorney General Letitia James filed a civil lawsuit last September against Trump, three of his children, and the Trump organization. The lawsuit accuses them of tax and insurance fraud. This suit also could have serious implications for Trump and his business, including significant financial penalties and restrictions on the defendants doing business in New York.
DOJ Policy Against Political Interference
The Department of Justice has a policy against filing charges or taking public investigative steps that could influence an upcoming election. The precise details are not actually written down anywhere, so it’s more of an internal norm than an official policy. Sometimes you hear that this rule applies within 90 days of the election, and sometimes you hear 60 days. When I was prosecuting corruption cases my understanding was always 60 days – basically, the policy kicked in after Labor Day, when election season traditionally intensifies.
Other particulars of this policy are also unclear. For example, does it apply only if it is the candidate himself or herself that is under investigation, or does it apply to any investigation that might have political implications? During the 2020 presidential campaign, then-attorney general William Barr said the policy would not apply to any prosecutorial actions regarding Hunter Biden, Joe Biden’s son, because Hunter was not on the ballot. More recently, some argued the policy would not prevent DOJ from indicting president Trump shortly before the midterm elections because Trump was not a candidate – even though such a step would have had obvious political implications.
But regardless of the exact scope of this DOJ policy, at this point it is no longer an issue. It is a policy against taking actions that might influence an imminent election, not a policy against any prosecution with political implications. Now that we are past the midterm elections, nothing in that policy would prevent DOJ from indicting the former president, even if he has announced his candidacy. Running for office does not grant you immunity from criminal investigation or prosecution. If a sitting elected official can be indicted, a candidate most certainly can be.
There is also a DOJ policy against indicting a sitting president, as we all were reminded during the Mueller investigation. But that policy also does not help Trump now. Regardless of what one thinks about this policy, everyone agrees that it does not apply to a former president — only to the current one.
Appointment of a Special Counsel
The bottom line is that Trump announcing his candidacy will have no effect on whether the different investigations can move forward. Nothing in DOJ policy would suggest otherwise. The same is true when it comes to state investigations and civil proceedings. One thing it might do, however, is prompt Merrick Garland to appoint a special counsel to conclude the various federal Trump investigations. There have been news reports that DOJ has already been discussing this possibility.
The special counsel regulations provide that the attorney general should appoint a special counsel to conduct a criminal investigation when DOJ has a conflict of interest, when there are other extraordinary circumstances, or when a special counsel would otherwise be in the public interest.
It's one thing for the Biden Justice Department to be investigating Trump when he is a leading Republican figure. Even then one could make an argument that a special counsel would be appropriate and that Garland should have appointed one long ago. But if Trump were to formally announce his candidacy for the 2024 presidency, the conflict of interest for DOJ would become much more concrete. All indications are that Biden intends to run for re-election. It’s hard to imagine a starker conflict of interest for the DOJ.
It's true that appointing a special counsel will not completely insulate the Biden administration from allegations of a political prosecution. Some Trump supporters will never be satisfied and will insist that any prosecution is politically motivated. And it’s also true that even under the special counsel regulations the attorney general retains ultimate control over the prosecution, so Garland cannot be completely removed from the process.
But appointing a respected career prosecutor, perhaps one with a Republican pedigree, would provide an additional layer of insulation from claims that any prosecution is simply an attempt to take out Biden’s most likely rival. For reasonable people, as opposed to MAGA cultists, that could be an important factor in accepting the legitimacy of any prosecution decision.
A special counsel presumably would not need to start from scratch. He or she could just assume supervision over the investigations and prosecutions teams that are already proceeding. So contrary to claims that it is “too late”, appointment of a special counsel need not cause any significant delays.
Trump may believe that declaring his candidacy will somehow help his legal situation. On the contrary, it may just result in the appointment of a special counsel whose sole responsibility is to oversee the federal criminal investigations of the former president, while state investigations proceed unimpeded.
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