The Indictment of Donald Trump
or why Merrick Garland can no longer wait
If the GOP wins control of the House after midterms, they won’t have power until January 3, 2023. Somewhere in the 57 days between Election day and the ascendancy of Rep. Kevin McCarthy (R-CA) as Speaker of the House, Merrick Garland will have to indict Donald Trump.
Why?
Mostly because “I cannot comment on cases being prosecuted” is a cleaner answer than “I cannot comment on ongoing investigations.” The political Right, led by the GOP and its public relations outlet FoxNews, will make political hay of both, but there is a decided difference between a well-papered indictment and a criminal investigation.
Indictments are static things with connective reasoning and an object goal — proving that the elements of a crime (or crimes) have been met. Investigations, on the other hand, are fluid, often disconnected, and conjectural. Professional commentators about the former are almost always retired prosecutors; whereas in the case of the latter, everyone from former federal investigators to ex-elementary school hall monitors play armchair experts.
In the Mar-a-Lago documents case, Donald Trump has done everything he can to indict himself with a plethora of explanations — none of which will work in court.
And his situation regarding the documents, which were seized on August 8th, just got decidedly worse — a Trump employee confessed to investigators that he moved boxes of documents at Donald Trump’s directive prior to their being seized.
That led former federal prosecutor Andrew Weissman1 to tweet this:
That is fairly dunning as was Harvard Law Professor Laurence Tribe’s twitter post:
And lest one think Trump will merely engage in the politics of delegitimization regarding a former employee (it’s a certainty that the person no longer works for Trump), the new revelations are buttressed by the testimony of former Trump attorney Alex Cannon. When 15 boxes of documents belonging to the United States were returned from Mar-a-Lago in February, Cannon refused Trump’s request that he attest to NARA, et al., that all the documents had been returned.2
The ring-fenced case has been made, it merely needs to be typed up and filed. The only question is when. There is a longstanding DOJ policy of not indicting a person or taking a legal steps towards an indictment before an election if it might affect the outcome. That means nothing can happen before November 9th.
Trump’s litigation over the Mar-a-Lago documents, which is merely civil, will play out at some point between late November and mid-December — and it’s unlikley that outcome will be in Trump’s favor.
If the GOP wins control of the House, Merrick Garland’s time frame for indicting Trump becomes constricted to the 57 days between Election Day and presumptive Speaker Kevin McCarthy caving into his caucus of election deniers, nihilists, and as yet unindicted insurrectionists demanding to use their congressional oversight to dissassemble and delegitimize the investigations of Donald Trump.
Indicting Trump will resolve the above for Merrick Garland, but time is not on his side.
Weissman worked at the department of Justice for 20 years and is the author of “Where the Law Ends: Inside the Mueller Investigation”.
https://www.washingtonpost.com/national-security/2022/10/03/trump-alex-cannon-documents/