Police stand outside an entrance to former President Donald Trump’s Mar-a-Lago estate on Monday, August 8, 2022, during an FBI search.(Wilfredo Lee / AP Photo)
It might not feel like it yet, but the parade of advertisements flashing across my screen tells me that summer is winding down and it’s time to prepare for autumn. For my wallet, that means shelling out for back-to-school supplies. For the country, it means midterm election mania, when every story and every event gets filtered through the haze of the partisan horse race.
It also means we’re reaching the point when significant attempts to hold former president Donald Trump accountable for any of his apparent crimes will probably be put on hold, delayed until after the elections. Attorney General Merrick Garland has even said as much, warning the DOJ to avoid making moves that may be perceived as “political” close to the election.
One result is that we’ve missed our chance to hold Trump or any of the other attempted coup plotters responsible before voters head to the polls. Whether or not these people ultimately get away with it, they have at the very least made it to the next election cycle without facing any punishment for trying to overturn the last one. In fact, a number of people who openly supported the failed coup, and who still support the debunked notion that Trump won in 2020, will now get to run for positions from which they can overthrow elections in the future. Republicans who support the Big Lie are running for state election boards, secretary of state, and even governor, while senators and Congress members who voted against certifying the election are seeking office once again.
This represents an enormous failure—of law enforcement, media, and of the Republican Party, which has embraced lies and candidates who support lies. A strong and well-functioning country simply doesn’t let the people who tried to destroy its way of life escape unpunished; it certainly doesn’t let them run for positions of public trust from which they can better implement their nefarious plans.
Even so, and despite these failures, Trump remains under a cloud of legal suspicion, subject to many investigations, which have only intensified over the summer. And regardless of how the midterms turn out, the power of various law enforcement officials to pursue Trump will remain intact.
Before the investigations enter a stage of public quiet, let’s take stock of where things stand with them.
The Department of Justice executed a search warrant against Donald Trump at his Florida home on August 8 and recovered around a dozen boxes of documents containing sensitive materials. Trump and his sycophants have flooded the airwaves with lies and misinformation about those documents, including an initial claim that the FBI planted them at Mar-a-Lago and a subsequent claim that they were declassified by Trump while he was president. By now, most people should recognize this white-wing playbook: first, they claim that it didn’t happen; then they claim that it doesn’t matter if it happened; then, if it turns out that it does matter, they argue that Hillary Clinton or Black Lives Matter did something worse.
On the low end of the bad-presidential-behavior scale, Trump may have mishandled official records—something I assume he’s been guilty of for a long time given his penchant for ripping and even flushing official documents. A violation of the Presidential Records Act, however, carries no teeth.
On the high end of that scale, Trump may have violated the Espionage Act, which can be punished by up to 20 years in prison (the death penalty is really only available in a time of war). Depending on what was in those documents, and how Trump used or intended to use them, he could have violated the prohibitions against gathering, transmitting, or losing defense information, and those violations would hold up even if Trump really did declassify the documents.
The distance between a presidential records violation and… espionage is vast. We do not know what other evidence the DOJ has against Trump. We do know that the agency gave him ample opportunity to return the documents voluntarily, but we don’t know if that courtesy suggests the relative insignificance of Trump’s offense, or if the delay afforded Trump additional opportunity to commit crimes while under surveillance.
This case is a bit like a meteor: It’s very hot and it could crash down on Trumpworld with devastating effect, or it could fizzle out in the sky as a pretty spectacle signifying nothing.
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The upshot of the espionage case is that it appears that the FBI raid of Mar-a-Lago was wholly unconnected to the ongoing investigation into the plot to overthrow the government on January 6, 2020. The raid was not the culmination of a years-long investigation into Trump’s culpability for the coup attempt; it is not evidence that Merrick Garland has been working in secret all this time to bring Trump to justice. It’s just another indication that Trump’s potential crimes are legion, and any time you actually look at the guy—really look at him—you catch him in the act of committing additional crimes.
That said, there is evidence that Garland’s investigation into Trump’s attempt to declare himself the winner of the 2020 election is picking up steam. The conclusion of last month’s January 6 Committee public hearings has opened up new avenues of investigation for the DOJ, mainly thanks to the explosive testimony of former White House aide Cassidy Hutchinson. We know that witnesses who long stonewalled authorities, like former White House counsel Pat Cippolone, are now willing to talk. We know that the January 6 Committee has worked out a deal to share information and witness testimony with the DOJ. We know that the DOJ has the phone records of key players in the plot to put forward fake electors to contest the electoral count—including Trump lawyer John Eastman and former White House chief of staff Mark Meadows. And we know that a grand jury has been subpoenaing witnesses and documents related to January 6, even if we don’t know what’s happening in front of it.
In short, we know that things are happening inside the Department of Justice. I doubt that we will see any indictments in September or October, before the midterms, but it is an increasingly safe bet that all of this work will lead to the indictment of somebody in connection with the attempted coup. I hope we find out in 2023.
New York State Attorney General Letitia James continues to unravel the web of potential financial crimes committed by Trump, his family, and his organization in New York State. Her investigation recently put Trump in a deposition chair to answer questions about his financial dealings under oath.
Trump availed himself of his Fifth Amendment right against self-incrimination during the deposition. There are many reasons a person would and should take the Fifth when being questioned about their potential crimes. It’s the smart thing to do; if I were questioned by Tish James about my damn checking account, I would take the Fifth until I was convinced she was investigating somebody else, and I haven’t been running a long-term scam to reduce the valuation of my assets for tax purposes.
A target of an investigation, as Trump must surely be, should take the Fifth, and a target’s taking the Fifth should in no way hinder a competent investigation or prosecution. Fans of legal television dramas may be addicted to the notion of the bad guy confessing his crimes under an intense interrogation or cross examination, but in the real world prosecutors have documents and testimony that counts as evidence that can be used to prove criminal activity, regardless of whether the criminal cooperates in their own downfall.
Trump’s deposition was merely a courtesy to allow him to explain himself—and perhaps lock himself into a story. Trump’s (wise) decision to listen to counsel and not answer James’s questions simply means that she will have to prove his guilt. It was never going to be Trump’s job to do that work for her office.
We don’t know if James has enough evidence to convince a grand jury that Trump should be indicted for financial crimes, but I suspect James does know if she can get him. I don’t think she would have brought Trump in for a deposition if she didn’t already have a strong case. I doubt anything will happen in New York before the midterms, but, of all the potential charges Trump could face, the ones in this case feel closest to culmination. Bringing Trump in for a deposition is very close to a final investigative step; now we have to wait and see if James charges him.
While the New York investigation may be the closest to completion, I have long thought that the Georgia investigation into Trump’s attempted election fraud, headed by Fulton County District Attorney Fani Willis, is the most likely to lead to Trump going to jail. That’s because we have evidence in the form of a taped phone call of Trump trying to commit election fraud or trying to get Georgia Secretary of State Brad Raffensperger to commit election fraud on his behalf.
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There have been recent developments in the case that spell potential doom for Trumpworld. Trump political caddy Lindsey Graham has been ordered by a judge to comply with a subpoena in the investigation. And lawyers for Rudolph Giuliani have been told that the former New York mayor is a target of the investigation.
With Graham in the spotlight and Giuliani under the gun, I allow myself to dream that testimony from two of Trump’s most constant political allies could one day seal his fate. I allow myself to hope that Trump is ultimately busted for trying to steal an election in a state that, even if he had won, wouldn’t have changed the outcome in the Electoral College. I would love for Trump to go down, in the end, because he can’t count to 270.
But again, none of that will happen before the midterms. Grifters like Graham and Giuliani will stonewall till the last, and Willis has already said she will pause her investigation if it gets too close to this year’s elections. Trump is in legal jeopardy in Georgia, but not in imminent danger.
All of these investigations will be waiting for Trump on the other side of the midterms, regardless of where the balance of political power resides in Congress. But every investigation into Trump is contingent on Democratic Party candidates holding positions of power in the long term. Republicans at the state and federal level have refused to investigate Trump and have instead devoted their entire party to his legal defense.
Hopefully, voters will remember that there is only one party that cares about democracy available to vote for this fall.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.