By Andrew C. McCarthy
Saturday, November 12, 2022
When we recorded the McCarthy Report on Thursday, I told Rich Lowry I was still pegging at 70 percent or higher the likelihood that former president Donald Trump would be indicted by the Justice Department. A day later, I’m now certain he’ll be indicted. The question is whether it will be just one indictment or more.
Trump has jumped the shark, as the kids used to say. His gratuitous attacks on two successful, popular Republican governors — both of whom, unlike him, could conceivably defeat President Biden or some other Democratic nominee in the 2024 election — have ended his chances of capturing the GOP presidential nomination two years from now. If the rant aimed at Florida’s Ron DeSantis wasn’t bizarre enough for you, the one launched at Virginia’s Glenn Youngkin was certain to be described as racist in our current age of hair-trigger sensitivity — though, for what it’s worth, I sense that the former president is losing his grip and that the racism charge assumes that more thought went into his “Young kin . . . Sounds Chinese, doesn’t it?” eruction than actually did.
As we discussed on the podcast, I’d already concluded that Trump had worn out his welcome. What was amusingly outrageous and boldly anti-conventional in 2015–16 is now just tired — more moronic than cringe-making because he long ago exhausted our capacity for cringing.
What does this have to do with his potential indictment, which is more a question of when than if at this point? Well, everything.
The Justice Department would prefer to make a January 6 case against Trump. Prosecutors are pushing in that direction, but it’s a tough case to make (the meanderings of California federal judge David O. Carter notwithstanding). They can’t tie Trump actionably to the violence of the riot, and they’ve already taken the position in other January 6 prosecutions that he was not a co-conspirator, just a pretext for a forcible attack that militia-type groups were already planning. That leaves the possibility of indicting him for obstruction of Congress and conspiracy to defraud the United States, but such charges would raise profound questions about whether the Justice Department was, in effect, criminalizing political speech and the far-fetched legal theories of John Eastman et al.
While that investigation marches on, though, Trump has given Democrats a gift: The Mar-a-Lago documents case, which arose due to bouts of gratuitous, self-destructive behavior similar to what we’ve seen the last couple of days, is a comparative slam dunk. That’s why a magistrate-judge authorized a warrant to search Mar-a-Lago upon finding probable cause that Trump had committed three felonies (mishandling classified information, conversion of government documents, and obstruction) — based on which the FBI conducted a search that yielded scads of incriminating documents, thereby making the case even stronger.
Given all of this, prosecutors are doubtless convinced that they have a case they could indict at any time. But they have also taken actions in recent weeks that underscore how serious they are about prosecuting the former president.
For example, they gave immunity to Kash Patel, a top Trump aide and former administration official, in order to force him to testify in the grand jury about his dubious public claims that Trump had declassified the highly sensitive documents he foolishly hoarded at his Palm Beach, Fla., estate. Prosecutors hate to confer immunity, which in most cases eliminates the possibility of prosecuting the immunized person; they do it only when they believe it necessary to make a criminal case against a more significant target.
The Justice Department has also taken legal steps to force testimony about potentially privileged conversations from two high-ranking Trump White House lawyers, Pat Cipollone and Pat Philbin. (The DOJ had already gotten grand-jury testimony from Marc Short and Greg Jacob, two top aides to former vice president Mike Pence.) Ordinarily, the Justice Department, in its capacity as the chief counsel for the executive branch, takes pains to avoid setting precedents that could undermine executive privilege and the principle that top executive officials are generally immune from testifying about the activities of the administrations they served. Yet here, caution is being thrown to the wind. This is rational only if the Biden Justice Department has decided that prosecuting Trump is worth the risk of making law that could redound to the detriment of the incumbent and future presidents.
And let’s not forget Atlanta. Fulton County district attorney Fani Willis, a partisan Democrat, is working toward a potential racketeering case against Trump and his allies for pressuring Georgia officials to invalidate Biden’s narrow popular-election victory in the state. If Trump is going to be charged in any event, the Biden Justice Department will want to be in the lead, not playing second fiddle to Willis and potentially having its case damaged if her office makes a hash of things.
All of these indicators — and they are not the only ones — point to a federal indictment of the former president. That’s why I’ve rated it a high probability. There has always been one factor pushing in the other direction, though: electoral politics. Democrats want Trump to be the 2024 GOP nominee. On that score, they have been understandably confident that he could win the Republican nomination and that they would then crush him in the general election — where his presence on the ticket would supercharge Democratic turnout, raising the realistic possibility of complete Democratic control of Congress, in addition to the White House.
For all the vigor the Biden Justice Department is clearly pouring into the effort to build criminal cases against Trump, the administration would undoubtedly rather run against him.
These two possible outcomes are not necessarily mutually exclusive. Still, for as long as it appeared that the Republican presidential primaries would end in Trump’s routing the field, or at least remaining competitive to the end, the Biden administration had an incentive to table any Trump indictment. If the DOJ were to charge Trump while the Republican primaries were ongoing, that would give Republicans — all but the most delusional Trump cultists — the final push they needed to abandon Trump and turn to a different candidate, who could (and probably would) defeat Biden (or some other Democrat) in November 2024. Of course, once Trump had the nomination sewn up, the Biden administration could indict him at any time, whether before or after defeating him in the general election.
Just as this calculus motivates the Justice Department to delay any indictment, it provides a powerful incentive for Trump to run — and, indeed, to launch a campaign early (maybe as early as next week) so he is positioned to claim that a likely future indictment is just a politicized weaponization of law enforcement aimed at taking out Biden’s arch-enemy.
Yet, again, all of these calculations have hinged on one thing: Trump’s remaining a plausible Republican nominee. And he’s not one anymore.
Though it may not yet have been obvious on Wednesday, Trump’s culpability in the GOP’s disastrously poor midterm showing — the much-anticipated red wave’s reduction to a red ripple — had already turned the tide away from him. Many of my friends believed it had knocked him down to a merely formidable candidate rather than the prohibitive favorite. I’d have gone further, taking the view that there were now enough fed-up Trump supporters and Republicans who adamantly oppose Trump that he would not only lose the primary but probably be knocked out early. When I assumed he was still thinking rationally, I supposed that Trump knew this, too — I figured he was mainly running in hopes of staving off indictment and trying to get his media venture (which is facing an uphill financing challenge and a possible securities-fraud investigation) up and running.
All of that is academic now. Trump is toast after his unhinged tirades against DeSantis and Youngkin. Attacking such unpopular Republicans as Liz Cheney and Adam Kinzinger is one thing, and attacking Mitch McConnell (or was it “Coco Chow”?) is just par for the course. But going after DeSantis and Youngkin, accomplished rising stars who give the disheartened GOP hope that better times may be around the corner, is just flat-out nuts. And nobody who’s not flat-out nuts wants any part of flat-out nuts.
If Trump is not a viable candidate for the GOP nomination, then his political usefulness to Democrats is deeply diminished, and federal prosecutors will see no reason not to indict him as soon as they have all their evidentiary ducks in a row. They certainly don’t want Fani Willis or some other ambitious Democratic state prosecutor to beat them to the punch. So at this point, we’re down to the matter of whether the Biden Justice Department can make the January 6 case, or whether it contents itself with the strong Mar-a-Lago case.
As Rich and I discussed on the podcast, some calculate that an indictment of Trump would revive him politically. There is a certain surface appeal to this view, but it is ultimately wrong. It would be right if we were talking about allegations akin to those at issue in Russiagate — a manufactured political narrative substituting for evidence. Such a baseless case would make Trump stronger, because it would be a patent abuse of prosecutorial power.
But here we are talking about actual, egregious misconduct. A January 6 prosecution of Trump might be a reach legally, but the country was repulsed by the Capitol riot — as compared to being bemused, then annoyed, by the fever dream of Trump–Russia “collusion.” As for the Mar-a-Lago probe, Trump has handed the Justice Department on a silver platter simple crimes that are serious and easy to understand. Beyond that, the DOJ also has a convincing story to tell: The government didn’t want to do it this way; National Archives officials pleaded with Trump to surrender the classified material voluntarily, asking for it back multiple times even after it became clear that he was hoarding it; the DOJ resorted to a search warrant only when Trump defied a grand-jury subpoena (with his lawyers’ falsely representing that there were no more classified documents in Trump’s possession other than the ones they’d returned); even then, prosecutors went through a judge to get the warrant rather than acting on their own; and even after the search, there remain significant concerns that classified information is still missing. Even someone initially sympathetic to Trump who did not want to see a former president get prosecuted would have to stop and ask, “What else were they supposed to do when he was being so lawlessly unreasonable, and when national security could be imperiled if classified intelligence falls into the wrong hands?”
The cases the DOJ is now investigating are nothing like Russiagate. They can’t be dismissed as a hoax. Trump is not going to be helped politically by prosecutions that most people will see as meritorious, even if the prospect of a prosecution and the soapbox it will give the former president rub them the wrong way.
The tricky question is whether Attorney General Garland will appoint a special counsel. There are reports that he is contemplating doing so, in order to give himself some insulation from the inevitable claim that politics is driving the Trump investigations. This would be smoke-and-mirrors: A special counsel would still report to the AG, and there are plenty of well-regarded former prosecutors who are Democratic (or at least anti-Trump), such that there would be no substantive difference between a special counsel and the Biden DOJ prosecutors now running the investigation — many of whom would no doubt get themselves appointed on the special counsel’s staff.
Here’s Garland’s problem, though: If he were to appoint a special counsel for Trump, he would come under intense pressure — including from House oversight committees that will likely soon be in Republican control — to appoint a special counsel for what should be called “the Biden family investigation” but is branded the “Hunter Biden investigation” for trivialization purposes. Rest assured that President Biden does not want a special counsel who might actually conduct an independent investigation of the millions of dollars from foreign sources (some hostile to the U.S.) that were generated by leveraging his political influence. Note, moreover, Garland’s repeated insistence that there is no need for a special counsel because the “Hunter” probe is in the capable hands of David Weiss, the Delaware U.S. attorney to whom the Trump Justice Department assigned the case. (Of course, Weiss doesn’t report to the Trump Justice Department anymore, does he?)
I suspect that Garland will forgo a Trump special counsel in order to make his refusal to appoint one for Biden (a matter in which he has an actual, profound conflict) appear more even-handed. That would be a tougher call if Trump were a viable GOP presidential candidate, and if there were a realistic possibility that an indictment of Trump would look like partisanship rather than good-faith law enforcement. But by his bizarre behavior, the former president has negated such considerations.
You don’t have to like this. I don’t like it. I was really hoping Donald Trump would see the light and think better of a presidential run, and that the Biden Justice Department would decide that the downsides of a Trump prosecution — the reminder of the DOJ’s comparative kid-glove treatment of Hillary Clinton, the deepening of the partisan divide over our two-tiered justice system — outweighed any law-enforcement benefits. Alas, this is not a matter of what we’d like, but of what we should expect will happen. Trump has seen to that.
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