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If I had to give advice to Donald Trump, I’d start with this: announce your candidacy for president. Do it tomorrow.
Technically, this is more political than legal advice. And I have no particular insight into the political wisdom around timing of a campaign announcement; that’s not my field of expertise. But the impact of a Trump announcement on any potential criminal charge is undeniable: it would make an already-fraught case – one that would pose unprecedented legal and practical challenges – even more difficult for prosecutors.
Attorney General Merrick Garland is absolutely right to note, as he has done often over the past few months, that no person is above the law and that the Justice Department will pursue the evidence wherever it may lead. When asked specifically by NBC’s Lester Holt whether an announcement of Trump’s 2024 candidacy would impact DOJ’s investigation, Garland responded, “Look, we pursue justice without fear or favor… We intend to hold everyone, anyone who was criminally responsible for the events surrounding January 6, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable.” Since then, DOJ has opened up a second investigative front, with the seizure of highly-classified documents from Trump’s residence at Mar-A-Lago. And, on the state level, Fulton County (Georgia) District Attorney Fani Willis seems to have kicked her investigation into gear.
Of course, an announcement by Trump of his 2024 candidacy would have zero technical or legal impact on any case or prosecution. While DOJ has a longstanding policy against charging a sitting president – which bailed Trump out more than once during his presidency and, more confoundingly, seemingly afterwards too (witness Mueller and the SDNY hush money investigation, both of which died on the vine) – there is no such formal prohibition on charging a candidate for the presidency.
So why, then, would a Trump 2024 announcement matter? Because of the political calendar and the realities of the trial and jury processes.
We’ve seen plenty of indicators over the past few months that DOJ is finally aiming at the White House: search warrants on crooked lawyers John Eastman and Jeffrey Clark, subpoenas relating to the fake electors scheme, subpoenas and interviews of former Trump White House insiders Pat Cipollone, Pat Philbin, Marc Short, Greg Jacob, and Cassidy Hutchinson. But it took the Justice Department far too long to get to this point. Federal prosecutors already have created a problem for themselves by allowing so much time to tick off the clock before they stopped trying to flip wackos in face paint and furry hats, and started focusing on the obvious locus of power behind the coup attempt. The same goes for the Fulton County DA, who inexplicably allowed a year and a half to tick away before even empaneling a grand jury just this summer.
Let’s take stock. It’s now September 2022 – more than a year and eight months after the Capitol attack, with midterm elections right around the corner. Still, nobody anywhere near any position of official power has been charged with anything.
We don’t know, of course, whether DOJ will ever reach Trump or other higher-level coup plotters. But if they do, there’s no conceivable way a charge lands before the November midterms, given longstanding Justice Department policy against bringing politically sensitive indictments close to an election. There is a healthy debate about the nuances of that policy – some note that Trump himself isn’t technically on the ballot – but suffice it to say, there’s just no practical way they’re indicting Trump on the eve of midterms. That leaves us with an indictment dropping (if ever) in late 2022 or early 2023, at the soonest.
An indictment, of course, is just the starter’s pistol. Prosecutors still have to run the race and try this thing. When, exactly, might that occur? We’d surely have to endure months of pre-trial litigation, likely including appeals, about the scope of a former president’s immunity – plus all the standard pre-trial discovery and motions, both of which promise to be extensive. Realistically, there’s no way any criminal trial of Donald Trump could happen until 2024, at the earliest (and, if ever).
Here’s where the political calendar comes into play. It already would be difficult enough for a prosecutor to convict Trump, even under normal circumstances. He’d be the first former president ever tried for a crime and, as ragingly unpopular he is in some quarters, he’s also worshiped in others. Now, imagine trying to convince twelve jurors to convict not only a former president, but also a declared presidential candidate – likely the Republican frontrunner, or even nominee, by the time any hypothetical trial might be held.
And remember: this isn’t an election, where majority vote wins. In a trial, prosecutors must win over all twelve jurors, unanimously and beyond a reasonable doubt. Anything less – even one holdout Trump sympathizer, or one juror who fears that a conviction might set off civil unrest, or one juror who simply doesn’t think the evidence is quite up to snuff – and the jury hangs and the judge declares a mistrial. That would be a disaster for prosecutors. (Technically they could re-try the case after a hung jury, but that would take even more time, and it seems doubtful they’d go through with a second trial of such controversial and all-consuming nature).
Beyond the courtroom, an indictment of Trump after he declares his candidacy would provide him with a political bonanza. His talking point would escalate from “They’re indicting me just to get revenge for what I did as president” to “They’re indicting me as a political ploy to damage my candidacy and prevent you from casting your vote and re-electing me in 2024.” He’d use a post-declaration-of-candidacy indictment to raise funds like mad, and to cast the other side as abusive of the prosecutorial process for political ends. You can roll your eyes and say that’s a bullshit claim, and it might well be – but it’d also work, with Trump’s core supporters, and perhaps even beyond.
It’s the fault of DOJ and the Fulton County DA, really. By their delay, they’ve left the door open for Trump, when they could have slammed it long ago. People like to intone, “Investigations take time.” Tell me about it; I’ve seen a few myself. The reality is there’s no way these cases needed to take twenty months (and counting). The Justice Department has virtually limitless resources, and the evidence has long been largely laid out in public. The January 6 Committee has provided a compelling foundation of proof, even with far less potent investigative tools than DOJ holds. The Justice Department never needed to start on the ground level and “work their way up,” as Garland often phrases it; they could have gone right at the top, right from the start.
Timing matters, folks. We live in reality. Prosecution is supposed to exist independent of politics, but you just can’t separate the two when it comes to a potential indictment of Donald Trump. Jurors are supposed to put aside their own views or any external considerations – but a jury is just a collection of twelve individuals, pulled together at random, subject to all the normal human biases and influences.
So yes, we might see an indictment of Trump from DOJ or the Fulton County DA, someday. But the twenty months those prosecutors have squandered so far are gone, and they’re not coming back. And now Trump can beat them to the punch, and render any prosecution a belated and desperate longshot, by declaring his candidacy first.