In other words, the fallout from Trump’s possible indictment was already factored into the DOJ’s decision-making. Even if Trump hadn’t announced it, they would have faced the same criticism, and Trump would likely have argued that he was indicted to dissuade him from announcing his candidacy in the future.
2. When will the DOJ issue an indictment?
I wouldn’t be surprised if the Justice Department waited until after the Georgia Senate runoff on Dec. 6 to take overt action — an indictment, the execution of another search warrant, or an arrest. Once this political event passes, charges could arise before or after the holidays.
3. But there is a lot of speculation that Garland will appoint a special counsel. Is it likely?
Attorney General Merrick Garland reportedly considered appointing a special counsel if Trump announced a run for president. The appointment of a special advocate essentially creates an ad hoc U.S. Attorney’s Office that has the power to investigate and prosecute specific cases. Garland could always override the special counsel, but he couldn’t do that without telling Congress.
A special advocate (which I have recommended in other circumstances) is a good idea because appointing a career prosecutor who has no connection to President Joe Biden or his appointees would provide some independence, especially if Garland had said in advance that he would follow the recommendation of the special adviser.
4. Wouldn’t that slow things down?
The potential appointment of a special advocate raised concerns that it would take years to conclude. This fear could be due to the long investigation led by former special counsel Robert Mueller, which lasted nearly two years.
But this case would be different because the DOJ is already investigating Trump and the same FBI agents could be working with the Office of Special Counsel. Some of the DOJ’s career prosecutors could be hired and work for the new special counsel. The appointment of a special advocate would slow things down by weeks, not months, if at all. Trump’s prosecution would more closely resemble Mueller’s prosecution of former Trump campaign chairman Paul Manafort, who was indicted within about five months of Mueller’s nomination because much of the investigative work had already been done.
5. What is Trump likely to be charged with?
Since Trump refused to turn over all of the classified documents he had at Mar-a-Lago, even after the Justice Department served him with a grand jury subpoena and demanded his return, charges related to his deliberate withholding of classified documents were likely. Obstruction of justice is also a possibility, based on evidence developed by prosecutors.
As I’ve written before, Trump’s determination to keep highly classified documents at his South Florida residence even after the feds told him they were classified and demanded their return sounds a lot more like the crimes simple ones I prosecuted as a junior federal prosecutor — bank robbery and narcotics trafficking — than the complex white-collar crimes I’ve spent years investigating and prosecuting.
White-collar crimes like fraud or obstruction generally depend on the intent of the accused. There is usually no doubt that the defendant has filed his tax returns. But did he do it with the intent to evade taxes? But not all crimes are so complicated. In a narcotics case, if you possess heroin or cocaine, you are guilty. You can argue that you didn’t really know it was narcotics – you may have thought it was powdered sugar – but that’s rarely a viable defense.
By keeping Top Secret documents even after receiving a grand jury subpoena and a personal visit from the DOJ demanding their return, Trump presented a very easy case to the DOJ.
6. What about the charges arising from the January 6 attack?
While it is possible that the DOJ may eventually develop sufficient evidence to charge Trump with incitement or misrepresentation to the federal government or a scheme to defraud the United States under the false voter scheme, these crimes depend on Trump’s intent or state of mind. mind and are therefore more difficult to prove.
For this reason, I expect the DOJ to focus on crimes involving Trump’s withholding of classified and other government documents. It is possible that the DOJ will add obstruction charges related to these documents, as they are factually related to the other charges and highlight evidence suggesting that Trump had a conscience of guilt that could convince jurors to convict on the other counts. of accusation.
7. Are other people in Trump’s orbit at risk of facing criminal charges?
Maybe. Some of his associates may have helped him hide documents or obstruct justice, which could lead the DOJ to include them in the indictment. There are also separate investigations into other Trump associates such as Jeffrey Clark. Clark could be charged regardless of what the DOJ does with Trump.
8. If Trump is indicted, would the trial take place before the November 2024 election?
After an indictment, the process slowed down.
Typically, defense attorneys have months to review evidence, and in a case involving so many classified documents, it could be a slow process. The defense will file motions, which the judge could take months to consider. The trial would likely last 12 to 24 months, in other words a range that would cover the entire election year.
Although Trump is entitled to a speedy trial — a trial in 70 days or less from the indictment — most defendants waive that right and drag out the process. When I was a federal prosecutor, some defendants created enough of a backlog to drag out the process for years before trial. Given the circumstances, however, I think most judges would likely ensure a trial is scheduled well before Biden’s term ends to lessen the impact a criminal trial would have on the 2024 election.
9. Can Trump still run for president if convicted? Can he be president if he wins the elections in prison?
Trump would not be sentenced until months after his conviction and could potentially stay out of jail pending appeal. But a conviction or even jail time would not prevent Trump from running for president. The Constitution sets requirements for presidential candidates, and a clean criminal record is not one of them.
Some have wondered if a convicted but still unconvicted Trump could be inaugurated and take over the Oval Office. While presumably could to happen, imposing a jail term on a sitting president is almost too bizarre to even consider and would certainly raise constitutional issues that the Supreme Court would ultimately resolve.