Will Trump get indicted? What we know form the Jack Smith investigation

The January 6 committee is over, but the investigation into Donald Trump is not.

Trump is now more in danger of impeachment than at any time since entering politics. A newly appointed special counsel is overseeing not one, but two, months-long cases against him. The first is about Trump’s attempt to overturn Joe Biden’s election victory, and the second is Trump’s handling of classified information. Separately, state investigations into election conduct and business practices are underway, and Trump has lost a sitting president’s immunity from prosecution (per Justice Department policy). And a federal judge has ruled that Trump’s attempt to steal the election was a criminal violation.

Now, if an indictment happens, that won’t be the end of the story – far from it. Trials or trials are likely, as well as numerous legal challenges from the Trump team (some of which may be before sympathetic judges). Trump may be unstoppable from pursuing a 2024 presidential run except for voters, but despite talk of new political issues, he continues to lead every poll of the GOP field of many candidates. There may be many twists and turns ahead.

Now, however, all eyes are on the new special counsel – Jack Smith.

Smith, a career DOJ prosecutor who stepped down to take a job in The Hague prosecuting war crimes in Kosovo, has taken on two investigations that have been going on for months — two investigations that create a strange contrast.

The investigation into Trump’s efforts to stay in power appears to be crucial, but the strength of the legal case, and the evidence against him personally, is unclear.

Meanwhile, the investigation into the handling of confidential documents appears to be legitimate with strong evidence – but there is tension among investigators over whether the crime is serious enough to warrant prosecution.

So, will the special counsel try to prosecute the president in an important but potentially more difficult case, or an easier but less monumental case? Or both?

The state of the investigation into Trump’s attempt to steal the 2020 election

A larger Justice Department investigation into the Jan. 6 attack has been underway since it happened, focusing first on the people who actually stormed the Capitol. First, there is no consensus in the political world as to whether Trump actually committed a crime by lying about the election. So the investigation against him does not appear to have started immediately.

Now we know that a team of prosecutors began to investigate Trump and his associates in the fall of 2021. About a year ago, this team “was given the green light by the Department of Justice to take the case up to Trump, if the evidence leads them to exist,” according to recent CNN article.

The investigation proceeded quietly at first. In January 2022, the Washington Post reported that “the department does not currently appear to be directly investigating” Trump. But just a week and a half after the article, Deputy Attorney General Lisa Monaco confirmed an investigation into one aspect of Trump’s scheme: voter fraud. This is an attempt by Trump allies to name Trump supporters as voters in primary swing states where Biden won, and to have their electoral votes submitted to Congress and Vice President Mike Pence and effectively deny the actual vote of the voters.

“Our prosecutors are looking into it, and I can’t say anything more about the ongoing investigation,” Monaco said.

In May, the investigation had subpoenaed many of Trump’s close aides for documents and requested specific information about lawyers who tried to help him overturn the election. In June, the house of Jeffrey Clark – Trump officially tried to manage the DOJ, in order to ask the Department to declare fraudulent election results – was searched by federal agents. The DOJ’s inspector general, Michael Horowitz, was involved in Clark’s investigation, as 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.

In late July, the Washington Post reported that prosecutors were asking “hours of detailed questions” about Trump’s actions specifically, on topics such as his involvement in fraudulent voter pushes and efforts to force Pence to throw out state election votes. Then in September, investigators​​​​ issued at least 40 subpoenas in one week, this time focusing more on Trump’s political operations and fundraising. More recently, new subpoenas have gone out to state officials Trump is trying to coerce.

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

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

First, how strong is the evidence against Trump personally? Did he “turn in” the members of his circle who could testify that he deliberately engaged in corrupt activities – or not? Will he be able to get away with the charges by claiming (some of) his lawyers advise him on everything he does legally?

Second, is the DOJ thinking about the legal issues at the heart of the case? On January 6, the House committee confirmed that Trump violated four laws while trying to stay in power: obstruction of official proceedings, conspiracy to defraud the United States, conspiracy to make false statements, and aiding and abetting an insurgency. And a federal judge, David Carter, has ruled in recent months that evidence shows Trump committed some of those crimes.

Still, although DOJ investigators are clearly taking their investigation seriously, we don’t know if they agree with Judge Carter’s legal analysis, or if they really believe what they think. One of Trump’s arguments in his possible defense is that he engaged in politicking and political speeches, not planning a criminal conspiracy. If he is indicted, the argument will likely reach the Supreme Court at some point.

This is all quite new territory and it is difficult to show such cases. The topic is important, but because Trump’s actions have never happened, there is no roadmap for what the special counsel is doing. the road must go forward.

The status of the classified document investigation

The confidential documents case, by contrast, appears to be simpler from a legal and evidentiary point of view – 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 abuzz with speculation about what might have justified such an extraordinary act, and what Trump might have done. Are they selling classified material to the highest bidder? Are they trying to blackmail the deep state? These theories have never been supported by evidence, but a Washington Post report that agents are looking for “nuclear documents” suggests it is monumental.

But more recent reports on the investigation show that DOJ prosecutors and FBI agents working for them disagree about the strength of the case.

According to a Washington Post report in December, the FBI was initially unsure whether it wanted to take the case. The National Archives asked him to get involved because they found classified material in boxes returned by Trump, and they think more material is missing. Even after Trump appeared to defy a grand jury subpoena to produce documents, some FBI agents working on the case “aren’t sure” they had sufficient cause to search, according to the Post.

The search was conducted in August, and prosecutors claim to have found dozens of classified documents, but what they found remains a mystery. The Post reported some of the documents contained “highly sensitive intelligence about Iran and China,” including a description of Iran’s missile program. The government has expressed concern that the information could endanger human intelligence sources. But it is difficult to evaluate these claims, because, the information is classified.

Meanwhile, the DOJ-FBI split reportedly continues. Bloomberg News reported in October that some DOJ prosecutors thought there was enough evidence to charge Trump with obstruction of justice because he defied subpoenas, some “internal critics,” including those at the FBI, questioned why Trump would be indicted when Hillary Clinton was not. ‘t in his own classified information investigation. (Clinton has some classified information in an email chain sent to her personal email account she uses for work; Trump has paper documents in a box at Mar-a-Lago.)

Furthermore, another Washington Post story suggests that even more outrageous and speculative theories about Trump’s motives for keeping secret documents are unfounded, in the eyes of researchers. However, he believes the motive was “egoism and the desire to hold onto the material as a trophy or memento.” That won’t get people off the hook for violating classified information laws, but sure less of a clear threat to national security from, say, trying to sell documents will.

So there’s some tension among reporters’ sources about whether Trump’s crimes here are serious enough to warrant an indictment (while Clinton has yet to be charged), with DOJ prosecutors preferring a more aggressive push and FBI agents more skeptical.

Smith’s special counsel must complete his own opinion on all of this, as well as on the 2020 investigation. And even if any charging recommendation that Smith makes will be approved by Attorney General Merrick Garland, his opinion will have great weight in determining whether Trump will be indicted next year.