Trump Candidacy Will Complicate, But Not End, DOJ Investigations Of Him
The Justice Department is determined to continue the probes, but Trump’s candidacy means extra procedural steps for investigators.
(Bloomberg) -- Donald Trump’s entry into the 2024 White House race adds a new degree of difficulty for federal prosecutors who’ve struggled for months to shield their investigations of the former president from accusations of political impropriety.
The Justice Department is determined to continue the probes, but Trump’s status as a candidate means investigators will have to take extra procedural steps to shield their work. They will also face pressure to speed it up in order to resolve any criminal trial and appeals before voters head to the polls.
If the Justice Department decides to indict him, Trump would be the first former president charged with a federal crime. And it would be under the auspices of the man who beat him for the presidency in 2020 and may run against him again in the 2024 election. Joe Biden hasn’t formally declared he is running again, though has said he plans to.
Politically, the announcement of his candidacy “gives Trump the ability to portray himself as a victim if he’s indicted in the coming months,” said Barbara McQuade, a former US Attorney for the Eastern District of Michigan. “He can point to that sequence of events as cause and effect and say it’s an effort to undermine his candidacy.”
Trump could use claims of persecution to rally support from his populist following, which accounts for a large portion of the Republican Party, and slow or derail the process with lawsuits and other challenges, repeating a strategy he has employed against previous probes.
The case that is furthest along appears to be the probe into whether he mishandled classified documents found at his Florida resort after he left office and acted to obstruct officials trying to recover them. Prosecutors are likely to wait on recommending whether to bring charges until a special master concludes a court-ordered review of documents, which is scheduled for mid-December.
The department also is investigating efforts by Trump and his allies to overturn the results of the 2020 election and stop the certification of Biden’s win, including through the use of fake electors in key battleground states. Those efforts culminated in a deadly attack on the US Capitol on Jan. 6, 2021 by Trump supporters and is also the subject of a separate probe by officials in one of the states, Georgia.
Some of the charges under consideration could, in the event of a conviction, render Trump ineligible to be president though that likely would be challenged in court.
Trump’s attorneys have already managed to slow the investigation of the documents case by convincing a judge to appoint the special master to review some of them. And Republicans have signaled a willingness in the new Congress to investigate the investigators and cast aspersions on the department’s work.
Jennifer Rodgers, a lecturer at Columbia Law School and former federal prosecutor with the Southern District of New York, said the Justice Department will probably be under pressure to resolve any criminal case long before 2024.
“I think they will want to charge sooner rather later in order to have a chance of getting through this litigation,” Rodgers said. “Every step of the way will be full of litigation. In order to have a fighting chance they’d have to charge him by this spring.”
Under policy governing investigations of political candidates, certain decisions, such as conducting surveillance or actually bringing charges, will need to be approved by US Attorney General Merrick Garland.
Justice Department officials have discussed the possibility of appointing a special counsel to avoid the appearance of a conflict of interest -- which would add another layer of bureaucracy and slow the process further -- though no decision has been made, according to people familiar with the deliberations who’ve asked not to be identified discussing internal discussions.
Even if the department appoints a special counsel, Garland -- who was appointed to his post by Biden -- will ultimately make the final decision on whether to charge Trump.
McQuade, now a law professor at the University of Michigan, said she didn’t think the appointment of a special counsel is necessary and would set a bad precedent for future investigations involving potential candidates for office.
“If you can get a special counsel just by saying you are running for president, then anyone who’s being investigated can just say they’re running of president,” McQuade said.
The Justice Department came under intense scrutiny while conducting previous, politically-loaded investigations, such as whether Trump conspired with Russia to interfere in the 2016 election. That case was handed to special counsel Robert Mueller by Trump’s attorney general.
Democratic nominee Hillary Clinton’s use of a private email server for sensitive communications while US Secretary of State was also investigated by the FBI while she was running against Trump for president. The department concluded no laws were broken.
“I doubt that Trump’s announcement of his candidacy alone would have any material impact on the continued forward progress of the department’s prosecution, or any decision to charge Trump,” said David Laufman, a former senior Justice Department national security official who led a team that probed Clinton’s emails.
The department declined to comment on the impact of Trump’s announcement. But Garland has repeatedly pledged to not let politics interfere with his decisions and actions.
He issued a memo in May stating that law enforcement officials must never take steps or bring charges “for the purpose of giving an advantage or disadvantage to any candidate or political party” when an election is near.
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