Indicted?

Will 2023 be the year Donald Trump is indicted?

The January 6 committee is done. The investigations into Donald Trump are not done.

By Andrew Prokop

The January 6 committee is finished, but the investigations into Donald Trump are not.

Trump is currently in more danger of indictment than at any time since he entered politics. A newly appointed special counsel is overseeing not one, but two, cases against him that have been proceeding for many months. The first revolves around Trump’s efforts to overturn Joe Biden’s election win, and the second, Trump’s handling of classified information. Separately, state investigations into his election conduct and his business practices are proceeding, and Trump has lost the sitting president’s immunity from prosecution (per Justice Department policy). And a federal judge has opined that Trump’s effort to steal the election amounted to criminal lawbreaking.

Now, if an indictment does happen, it would not be the end of the story — far from it. A trial or trials would follow, as would many legal challenges from Trump’s team (some perhaps before sympathetic judges). Trump likely can’t be stopped from continuing his 2024 presidential run except by voters, but despite talk of his recent political woes, he continues to lead every poll of a multi-candidate GOP field. There could be many more twists and turns ahead.

For now, though, all eyes are on that new special counsel — Jack Smith.

Smith, a career DOJ prosecutor who stepped down to do a stint in the Hague prosecuting war crimes in Kosovo, has taken over two investigations that have been up and running for many months — two investigations that make for a bit of an odd contrast.

The investigation into Trump’s attempt to stay in power seems extremely substantively important, but the strength of the legal case, and the evidence against him personally, aren’t all that clear.

Meanwhile, the investigation into his handling of classified documents seems legally clear-cut with strong evidence behind it — but there are reportedly tensions among investigators about whether the crime is sufficiently serious to merit charges.

So, will the special counsel try to indict the president in the important but perhaps tougher 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 going on since they happened, focusing first on the people who actually stormed the Capitol. Initially, there wasn’t really 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 appear to have begun immediately.

We now know that a team of prosecutors began more intensely scrutinizing Trump and his associates in the fall of 2021. About a year ago, this team was “given the green light by the Justice Department to take a case all the way up to Trump, if the evidence leads them there,” according to a recent CNN article.

The probe proceeded quietly at first. In January 2022, the Washington Post reported that “so far the department does not appear to be directly investigating” Trump. But just a week and a half after that article, Deputy Attorney General Lisa Monaco confirmed an investigation into one aspect of Trump’s scheme: fake electors. This was Trump allies’ effort to name Trump supporters as electors in key swing states Biden won, and to have their purported electoral votes submitted to Congress and Vice President Mike Pence and effectively dispute the actual electors’ votes.

“Our prosecutors are looking at those, and I can’t say anything more on ongoing investigations,” Monaco said.

By May, the investigation had subpoenaed many close Trump aides for documents and was asking specifically for info about lawyers who had tried to help him overturn the election. In June, the home of Jeffrey Clark — the official Trump tried to put in charge of DOJ, so he could enlist the Department in declaring the election results fraudulent — was searched by federal agents. DOJ’s inspector general, Michael Horowitz, is involved in the investigation of Clark, since he was a DOJ employee at the time. Rep. Scott Perry (R-PA), who put Trump in touch with Clark, is also a key subject of this investigation.

By late July, the Washington Post reported prosecutors were asking “hours of detailed questions” about Trump’s actions specifically, on topics such as the extent of his involvement with the fake elector push and his effort to pressure Pence to throw out state electoral votes. Then in September, investigators issued at least 40 subpoenas in a week, this time focusing more on Trump’s political and fundraising operations. More recently, new subpoenas have gone out to state officials Trump tried to pressure.

A growing number of Trump aides have gone in to testify before one of several active Washington, DC grand juries in recent months. The former president filed a secret suit to try and block testimony of aides like former White House counsel’s office lawyers Pat Cipollone and Patrick Philbin, citing privilege concerns, but he lost that suit, and they testified last month.

The investigation certainly seems quite sprawling and serious at this point. But, importantly, we still lack visibility into a few important questions.

First, how strong is the evidence against Trump personally? Have they “flipped” members of his inner circle who can testify that he knowingly committed corrupt activity — or not? Will he be able to get out of charges by claiming (some of) his lawyers advised him everything he was doing was legally permissible?

Second, what is DOJ thinking about the legal issues at the heart of the case? The House January 6 committee argued that Trump broke four laws in his attempt to stay in power: obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and assisting an insurrection. And a federal judge, David Carter, already ruled months ago that evidence suggests Trump committed some of these crimes.

Still, though DOJ investigators are clearly taking their investigation very seriously, we don’t actually know whether they agree with Judge Carter’s analysis of the law, or whether they are even entirely sure what they think about it yet. One of Trump’s arguments in defense will likely be that he was engaging in politicking and political speech, not plotting a criminal conspiracy. If he is indicted, that argument would surely reach the Supreme Court at some point.

This is all fairly novel territory and it’s hard to point to a case quite like it. The topic is enormously important, but because Trump’s actions were so unprecedented, there’s much less of a roadmap on what the special counsel’s path forward should be.

The state of the classified documents investigation

The classified documents case, by contrast, seems simpler from both a legal and evidentiary perspective — but it has its own potential problems.

When the FBI raided Mar-a-Lago in search of classified documents in August, the political world was rife with speculation about what could have justified such an extraordinary action, and what Trump might have been up to. Was he selling classified material to the highest bidder? Was he trying to blackmail the deep state? These theories were never backed by evidence, but a Washington Post report that agents were looking for “nuclear documents” suggested this was monumental stuff indeed.

Yet more recent reports on the investigation suggest the DOJ prosecutors and FBI agents working on it are not in full agreement about the strength of the case.

According to a Washington Post report in December, the FBI initially wasn’t sure it wanted to take up the case at all. The National Archives had asked them to get involved because they had found classified material in boxes belatedly returned to them by Trump, and they thought more material was missing. Even after Trump appeared to defy a grand jury subpoena to return documents, some FBI agents working on the case “weren’t certain” they had enough probable cause for a search, per the Post.

The search took place in August, and prosecutors claim to have found dozens of classified documents, but exactly what they found remains mysterious. The Post reported some documents had “highly sensitive intelligence regarding 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 is difficult to evaluate those claims, because, well, the information is classified.

Meanwhile, the DOJ-FBI divide has reportedly persisted. Bloomberg News reported in October that though some DOJ prosecutors thought there was enough evidence to charge Trump with obstruction of justice because he defied the subpoena, some “internal critics,” including in the FBI, are questioning why Trump would be charged when Hillary Clinton wasn’t in her own classified information investigation. (Clinton had some classified information in email chains sent to her personal email account that she had used for work; Trump had paper documents in boxes at Mar-a-Lago.)

Furthermore, yet another Washington Post story suggests that the more ominous and speculative theories about Trump’s motives in keeping classified documents weren’t founded, in investigators’ eyes. They’ve come to believe, instead, that his motive was “largely his ego and a desire to hold on to the materials as trophies or mementos.” That would not get him off the hook for violating classified information law, but it’s certainly less of a clear-cut threat to national security than, say, the attempted selling of documents would be.

So there are clearly some tensions among reporters’ sources about whether Trump’s crime here is sufficiently serious to merit indictment (when Clinton had not been charged), with DOJ prosecutors preferring a more aggressive push and FBI agents more dubious.

Special counsel Smith will have to sort out his own views on all this, as well as on the 2020 investigation. And though any charging recommendation Smith makes will go up to Attorney General Merrick Garland for approval, his opinion will carry great weight in determining whether Trump ends up indicted in the next year.