Stop me if you’ve heard this before: New developments have put Donald Trump in even more serious legal jeopardy.
A new civil fraud case from the New York Attorney General’s office threatens his company, while his efforts to fail the criminal investigation into whether he mishandled classified information appear to have failed. And a separate investigation into the attack of January 6 examines his employees.
It all looks very bad for him. On the other hand, for at least five years, much of the media has touted the seriousness of Trump’s legal peril, portraying him as on the brink of humiliating ruin — only to see him go, in his own words,”Scott Free,” again and again.
The Mueller Inquiry, the Michael Cohen Study, the first impeachment, the second impeachment, and the Manhattan District Attorney’s investigation were each hyped as the thing that could topple Trump. But they all died out or went quiet, while Trump was remarkably, well, not knocked down.
So will it be different this time? Are the walls really coming closer?
It certainly appears that Trump’s threat of criminal charges is currently greater than it has been since he entered politics, due to the investigation of classified documents and the fact that he is no longer a sitting president with immunity from charges. The civil lawsuit in New York – at least on the face of it – seems to present also a serious threat to his business. The lawsuit alleges that Trump and his employees have “violated numerous state criminal laws” and that their conduct is “probably in violation of federal criminal law,” and New York Attorney General Letitia James said she would refer her findings. to federal prosecutors.
But it’s worth remembering that Trump has not yet been criminally charged with anything, and prosecution prudence may still prevail. Even if Trump is indicted, a potential trial would pose further challenges, and if convicted, the potential punishment may not be that severe. And while he’s facing that civil lawsuit in New York, there’s no certainty of a trial either.
Critics of Trump who hope he will be removed from politics via indictment or prison may hope in vain. If he chooses to participate again, it will likely be the voters who will decide his fate.
What prosecutors will consider before prosecuting an indictment or trial against Trump?
Whatever you believe about the strength of the evidence against Trump in these various investigations, his status as an incumbent president meant that he could not be charged during his term in office, according to the Justice Department’s long-standing policy. And his continued popularity among Republican voters meant impeachment would end in acquittal (because many Republicans in the Senate would have convicted him). So from January 2017 to January 2021, the power of his office and the power of his political base protected him.
Since Trump left office, his shield against indictment has disappeared. And while its political base on the right remains strong, the arena has changed: Republican politicians are no longer the key decision-makers.
Instead, the prosecutors are in control. Several prosecutors — in New York, in Washington, DCand in Georgia – the past few years have scrutinized Trump’s conduct for possible crimes, investigating his company’s business practices, his bid to reverse the 2020 election results, and whether he has improperly sent classified documents to Mar-a-Lago brought.
These prosecutors will have to assess the strength of the evidence against Trump, assess whether he has indeed committed crimes, and whether they would be likely to convince a jury of that during the trial. Federal prosecutors will also need to convince senior officials such as Attorney General Merrick Garland.
It’s hard to play out the minds of these prosecutors because we don’t have access to the evidence they’re looking at, or their legal reasoning. For any of the Trump investigations, we don’t know if they think they’re looking at a clear open and closed case of crime, if their legal theory is supported by broad precedent or if it’s a bit new, or if similar cases are often seen in similar cases. situations. (Trump’s bid to undo the election has little to no modern precedent in the US, so it’s hard to even know what to compare it to.)
But for many prosecutors, especially at the US Department of Justice, caution is in place. Prosecuting an indictment and trial in a high-profile case is resource-intensive and carries the risk of embarrassment if the trial ends in acquittal. DOJs prosecution manual says state attorneys should consider not only whether they believe the person committed a crime, but also whether “the admissible evidence is likely to be sufficient to obtain and sustain a conviction.”
So prosecutors usually look for a clear, open and closed crime. The issue of the classified documents may seem like such a crime: Trump had the documents, he shouldn’t have taken them, so they could argue that he should be arguably charged.
Still, there are many complications that could make the government wary of a potential trial. First, they want to keep the documents secret. Depending on whether the location is in Florida (it’s currently unclear where they charge it), a jury conviction can be difficult. And while Trump’s arguments about executive privilege may seem a bit exaggerated, this Supreme Court has not yet weighed in on them.
Note that when former CIA director David Petraeus was investigated for leaking classified material to his biographer, he finally signed a plea deal to two years’ probation and a $100,000 fine. Trump’s behavior is still shady, so maybe it was worse, and he’s unlikely to make a plea deal like Petraeus did, but Petraeus actually leaked the information and Trump is not known to have done so. If a case were brought and Trump was found guilty, he could face similar consequences — or even a less severe sentence.
Now prosecutors in Georgia and New York have been elected Democrats and may be more willing to take risks to go after Trump. But even they may have reasons for caution. An indictment and trial of Trump would swallow up anything else their office could do for years to come and become a grueling effort, while making them personally a top target of Fox News and the right. Even if that doesn’t give them a break, they may simply decide they aren’t strong enough.
Earlier this year, Alvin Bragg, a criminal justice reformer chosen as Manhattan’s district attorney, reportedly expressed doubts about the ongoing investigation into Trump’s business practices he had just taken over, and two prosecutors leading the case, soon resigned. (Bragg insisted in a statement this week that his office’s Trump investigation was “active and ongoing.”)
On Wednesday, New York Attorney General Letitia James filed a civil suit in that same investigation, setting up a civil lawsuit with potentially major implications for the Trump organization. There too, though Politico’s Josh Gerstein and Kyle Cheney Argue that a settlement remains a real possibility, writing: “Continuing the case to completion could take years and there is no guarantee that a judge will agree to all the remedies requested by the AG.”
Only Voters Can Really Take Trump Down
If Trump is ultimately charged with criminal charges, it will be a while before a trial comes. And even if he is eventually convicted, depending on what the charges are, it’s not clear he would face a particularly harsh sentence.
All that is to say, if Trump wants to run for president again in 2024, it seems unlikely that the cases against him could completely remove him from the political scene. (Some liberals are excited that punishment for mishandling government documents is disqualification from “holding office under the United States,” but many experts to believe which is unconstitutional as applied to the presidency, as the qualifications for that office are set out in the constitution.)
Instead, Trump’s political future is likely to be determined at the ballot box, if he takes part again — in the primaries and general elections.
There is a hope among some Trump skeptics, including in the GOP, that Governor Ron DeSantis (R-FL) will run and prove to be a powerful challenger. Perhaps that could happen, and perhaps Trump’s legal troubles will help weaken his position if GOP voters fear he will be an electoral loser.
However, it is still far from clear how it will go. As my colleague Zack Beauchamp recently wrote, Trump-like candidates have done pretty well in the Republican primaries this year, and Trump continues to lead all national GOP primary pollsusually by large margins.
As for the general election, if Trump makes it, that too is murky. President Biden said recently his “intent” is to run again, but whether that’s a “firm decision” remains to be seen.
He would be 81 years old on election day, is… not popular despite some recent improvements, and if he doesn’t join, it’s unclear which Democrat would succeed him. You might think that certainly after January 6, dobbs, and with a criminal investigation over his head, Trump is too damaged to win a general election. But as demonstrated in 2016, the Democratic candidate’s identity and political strength will also matter.
Investigations and charges could hurt Trump politically, though his die-hard loyalists are likely to stand by him no matter what. But in both the primaries and the general election, what it really takes to beat him is an attractive alternative for voters to flock to. That is the only way the Trump era in politics can really end.
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