Trump criminal probes will proceed — even as he's a presidential candidate

Trump enters the race facing federal investigations related to his efforts to overturn the 2020 election results and into the hoarding of top-secret government documents at his Florida estate — plus a separate state probe in Georgia. The Mar-a-Lago investigation has advanced especially swiftly, with prosecutors this month giving a close Trump ally immunity to secure his testimony before a federal grand jury. Justice Department lawyers in that probe say they have amassed evidence of potential crimes involving not only obstruction but also the willful retention of national defense information.

It remains unclear if anyone will be charged, as does the timetable for a decision. But former officials say the best way to ensure the outcome is seen as above reproach is to conduct a by-the-book investigation showing no special favor or ill treatment because of Trump’s former high office.

“The public will have the most faith in what you’re doing, and you will get the most successful results, if you treat Donald Trump like any other American,” said Matthew Miller, who served as Justice Department spokesman under former Attorney General Eric Holder.

Current Attorney General Merrick Garland has suggested as much, saying last summer in response to questions about Trump and the Jan. 6 investigation that “no person is above the law.” Asked in a July television interview how a potential Trump candidacy might affect the department, Garland replied: “We will hold accountable anyone who is criminally responsible for attempting to interfere with the transfer — legitimate, lawful transfer — of power from one administration to the next.”

Investigating any elected official or candidate for office almost always invites political speculation. Justice Department protocol cautions prosecutors against taking overt action in the direct run-up to an election, but that’s more a standard convention than a hard-and-fast rule. And the 2024 presidential contest is two years away.

Still, it’s not easy to investigate a former president or current candidate. That’s especially true in the case of Trump, who spent his presidency assailing his own Justice Department and haranguing attorneys general he himself had appointed. He has already lambasted the FBI for searching Mar-a-Lago in August, using the episode to raise funds from supporters.

Now, with his candidacy official, he and his supporters will try to reframe the narrative of the investigation as political persecution by a Democratic administration that fears him for 2024.
In fact, one risk for Democrats is that Trump — who during his announcement Tuesday declared himself “a victim” — could galvanize his supporters anew with that argument. On the other hand, the results of last week’s midterm elections suggest he may be more politically vulnerable than many had thought, including in his Republican Party.

What about past investigations of a presidential candidate? There is a recent precedent, though under different circumstances.

In 2016, the Obama administration’s Justice Department investigated Democratic candidate Hillary Clinton over her use of a private email server as secretary of state. Despite the efforts of the law enforcement officials who worked the investigation to remain above the fray, the probe became repeatedly mired in presidential politics — in ways that may not have been foreseen when it began.

Then-Attorney General Loretta Lynch expressed regret over a chance encounter she had with Bill Clinton in the final days of the investigation. Former FBI Director James Comey was blamed for harming Clinton’s candidacy by making a detailed public explanation of why the bureau was not recommending charges and then for reopening the probe 11 days before the election.

David Laufman, who supervised that investigation for the Justice Department as chief of the same section now running the Mar-a-Lago probe, said there’s a “surreal disconnect” between the political maelstrom that accompanies politically freighted investigations and the heads-down mentality of a prosecutor determined to just do the work.

“Here we were, conducting a criminal investigation with national security undertones in a way that was practically splashed on the front page of every newspaper every fricking day,” Laufman said. “And all we could do was to continue to do what we knew had to be done — to obtain all the relevant facts needed to make judgments about whether it was appropriate to recommend criminal charges.”

He said he believed the investigators working Mar-a-Lago have been the same way, praising their professionalism amid pressure from the public and even concerns about their personal safety.

In the Clinton case, Comey has said he considered recommending a separate special counsel to direct the investigation, though he ultimately did not. The option of a specially appointed prosecutor who would report to Garland exists here as well, just as the Trump-era Justice Department appointed former FBI Director Robert Mueller to lead the investigation into potential coordination between the 2016 Trump campaign and Russia.

It’s not clear how seriously Garland would consider that. A department spokesman declined to comment.

Politics aside, in making the decision whether to bring an indictment, much will ultimately depend on the strength of the Justice Department’s case.

“If the government’s case is exceptionally strong, I think the rule of law will have a predominant weight in the attorney general’s calculus,” Laufman said.