The January 6 committee is readybut not the investigations into Donald Trump.
Trump is currently in more danger of indictment than at any time since he entered politics. A newly appointed special counsel oversees not one, but two cases against him that have been going on for many months. The first revolves around Trump’s attempts to overturn Joe Biden’s election victory, and the second revolves around Trump’s handling of classified information. Separately, state investigations into his election conduct and business practices are ongoing, and Trump has lost the sitting president’s immunity from prosecution (under Justice Department policy). And a federal judge has judged that Trump’s attempt to steal the election amounted to a violation of criminal law.
If an indictment comes now, it wouldn’t be the end of the story – far from it. A trial or trials would follow, as well as many legal challenges from Trump’s team (some perhaps to sympathetic judges). Trump probably can’t be stopped from continuing his 2024 presidential run except by voters, but despite talk about his recent political woeshe continues to lead any poll of a multi-candidate GOP field. Many more twists could follow.
But for now, all eyes are on that new special counsel: Jack Smith.
Smith, a professional DOJ prosecutor who stepped down to do a stint in The Hague prosecution of war crimes in Kosovohas taken over two studies that have been going on for many months — two studies that are a bit of an odd contrast.
The investigation into Trump’s attempt to stay in power seems extremely important in substance, but the strength of the lawsuit, and the evidence against him personally, is not entirely clear.
Meanwhile, the investigation into his handling of classified documents seems legally clear with strong evidence behind it – but reportedly there is tensions among detectives whether the crime is serious enough to be prosecuted.
So, will the special counsel try to charge the president in the important but perhaps more difficult case, or the easier but less monumental case? Or both?
The state of the investigation into Trump’s attempt to steal the 2020 election
The Justice Department’s larger investigation into the January 6 attacks has been underway since they occurred, focusing first on the people who actually stormed the Capitol. Initially, there wasn’t much of a consensus in the political world about whether Trump had actually committed crimes with his web of lies about the election. So an investigation into him does not seem to have started immediately.
We now know that a team of prosecutors began investigating Trump and his associates in the investigation more intensively fall of 2021. About a year ago, this team “got the green light from the Justice Department to take a case all the way to Trump, if the evidence leads them there,” according to a recent CNN article.
The probe was initially uneventful. In January 2022, the That reported the Washington Post that “the department does not appear to be directly investigating” Trump as of yet. But a week and a half after that article, Deputy Attorney General Lisa Monaco confirmed an investigation into one aspect of Trump’s plan: fake voters. This was Trump’s allies’ attempt to name Trump supporters as voters in key swing states that Biden won, and to submit their alleged electoral votes to Congress and Vice President Mike Pence and the voters’ actual votes effectively contested.
“Our prosecutors are looking into that, and I can’t say anything more about ongoing investigations.” Monaco said.
In May, the investigation had subpoenaed many close Trump aides for documents and specifically asked for information about lawyers who had tried to help him overturn the election. In June, Jeffrey Clark’s home — the Trump official tried to put DOJ in charge so he could enlist the Department to declare the election results fraudulent — was sought by federal agents. DOJ’s Inspector General, Michael Horowitz, has been involved in the investigation of Clark ever since a DOJ employee at the time. Rep. So is Scott Perry (R-PA), who put Trump in touch with Clark an important topic of this study.
At the end of July the That reported the Washington Post Prosecutors asked “hours of detailed questions” about Trump’s actions in particular, covering topics such as the extent of his involvement in the bogus voter campaign and his attempt to pressure Pence to throw away electoral votes from the state. Then in September, researchers issued at least 40 subpoenas in a week, this time focusing more on Trump’s political and fundraising operations. More recently, new subpoenas have been issued stands officials Trump tried to apply pressure.
A growing number of Trump aides have moved in in recent months to testify before one of Washington, DC’s many active grand juries. The former president filed a secret lawsuit to try to block the testimony of aides such as former White House attorneys Pat Cipollone and Patrick Philbin, citing concerns over privilege, but he lost that lawsuit, and they testified last month.
The investigation certainly seems pretty sprawling and serious at this point. But, more importantly, we’re still out on some key questions.
First, how strong is the evidence against Trump personally? Have they “turned” members of his inner circle who can testify that he knowingly committed corrupt activities – or not? Will he be able to face charges by claiming that (some of) his lawyers advised him that everything he did was legal?
Second, what does DOJ think about the legal issues at the heart of the case? The January 6 House committee argued that Trump had broken four laws in his bid to stay in power: obstruction of official proceedings, conspiracy to defraud the United States, conspiracy to make a false statement and help in an uprising. And a federal judge, David Carter, ruled months ago that evidence suggests Trump committed some of these crimes.
While DOJ investigators clearly take their investigation very seriously, we don’t really know if they agree with Judge Carter’s analysis of the law, or if they are even completely sure what they think about it yet. One of Trump’s arguments in his defense will likely be that he engaged in politics and political speeches, not plotting a criminal conspiracy. If he is indicted, that argument will surely make it to the Supreme Court one day.
This is all fairly new territory and it is difficult to pinpoint such a case. The topic is hugely important, but because Trump’s actions have been so unprecedented, there is much less of a roadmap on what the special counsel will do. path should be forward.
The state of the investigation of secret documents
The classified documents case, on the other hand, seems simpler, both from a legal and evidence point of view, but has its own potential problems.
When the FBI raided Mar-a-Lago for classified documents in August, speculation abounded in the political world about what could justify such an extraordinary move, and what Trump might have been up to. Did he sell classified material to the highest bidder? Was he trying to blackmail the deep state? These theories were never supported by evidence, but a Washington Post report that agents were looking for “nuclear documents” suggested that these were indeed monumental things.
But more recent reports on the investigation suggest that the DOJ prosecutors and FBI agents working on it don’t quite agree on the strength of the case.
According to a Washington Post report in December, the FBI was initially unsure whether it wanted to handle the case. The National Archives had asked them to participate because they had found classified material in boxes that Trump had returned too late, and they believed more material was missing. Even after Trump appeared to defy a grand jury subpoena to return documents, some FBI agents working the case were “not sure” they had enough probable cause for a search, according to the Post.
The search took place in August and prosecutors claim to have found dozens of classified documents, but what exactly they found remains mysterious. The Message reported some documents contain “highly sensitive information about Iran and China”, including a description of Iran’s missile programs. The government has expressed concern that the information could jeopardize human intelligence sources. But it’s hard to judge those claims because the information is classified.
Meanwhile, the rift between DOJ and FBI has reportedly persisted. Bloomberg News reported in October that while some DOJ prosecutors thought there was enough evidence to charge Trump with obstruction of justice because he defied the subpoena, some “internal critics,” including within the FBI, question why Trump should be indicted when Hillary Clinton was not indicted. her own country was investigating classified information. (Clinton had some classified information in email chains sent to her personal email account she had used for work; Trump had boxed paper documents at Mar-a-Lago.)
Further, yet another Washington Post story suggests that the more ominous and speculative theories about Trump’s motives for preserving classified documents were unfounded in the eyes of investigators. Instead, they have come to believe that his motive was “largely his ego and a desire to hold onto the materials as trophies or mementos.” That wouldn’t get him off the hook for breaking the classified information law, but it certainly does less of a clear threat to national security than, say, an attempted sale of documents.
So there are clearly tensions between reporter sources over whether Trump’s crime here is serious enough to warrant indictment (when Clinton was not indicted), with DOJ prosecutors favoring a more aggressive push and FBI agents more questionable.
Special Counsel Smith will have to make his own mind up about all of this, as well as the 2020 investigation. And while any charges Smith makes will be submitted to Attorney General Merrick Garland for approval, his view will be instrumental in determining whether Trump will be indicted next year.