Can Donald Trump protect himself legally by running for president?

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Does running for president protect Trump from legal charges?

Donald Trump’s third run for president comes at a fraught moment, sandwiched behind a bruising series of defeats of the 2022 midterm elections and before the resolution of multiple criminal investigations surrounding him.

Trump faces a mounting series of legal challenges spanning from Florida to New York. Among the fastest-moving are the Justice Department’s investigation into Trump’s handling of sensitive government documents and the investigation by Fulton County, Georgia, District Attorney Fani T. Willis into Trump’s efforts to overturn the 2020 presidential election. The federal investigation into the Mar-a-Lago records has moved quietly forward in recent weeks, with federal prosecutors reportedly offering top Trump national security adviser Kash Patel immunity in exchange for his grand jury testimony.

None has yet resulted in formal charges against the former president. Legal experts and observers say prosecutors in Georgia and the Department of Justice are not likely to be swayed by Trump’s announcement on Tuesday.

“Regardless of Donald Trump’s timing of making an announcement, it shouldn’t affect the prosecution when the entire investigation has been thorough, has been fair and has really been showing that the [Justice] Department can handle things that are political in nature,” said Debra Perlin, policy director for the watchdog group Citizens for Responsibility and Ethics in Washington.

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In May, Attorney General Merrick Garland issued a memo that reiterated long-standing Justice Department policies that limit prosecutorial activity during election season. “Simply put,” Garland wrote, “partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges.”

Trump’s early announcement could squeeze prosecutors — but not block them

From the investigation led by then-special counsel Robert Mueller to his two impeachment trials, Trump has a well-documented history of trying to cast himself as a victim of politically motivated “witch hunt” attacks any time he has been under investigation.

Experts see that same strategy likely playing a role in the timing of Trump’s anticipated announcement of his plans for 2024.

If Trump is a presidential candidate, he would be able to claim any attempted federal prosecution is coming at the hands of a Justice Department reporting to a likely general election rival, President Joe Biden.

Jeffrey Robbins, a former federal prosecutor and counsel for the Senate’s Subcommittee on Investigations and Governmental Affairs Committee, said if Tuesday’s announcement is intended to make it more difficult for the Justice Department to indict Trump, it will not be successful.

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“If he can make it even more difficult for Garland by making it an indictment of a former president who has announced his candidacy for the presidency, you play the margins if you’re Donald Trump,” Robbins said. “I think that what will prevail in the Department of Justice is the view that how can we not indict him?”

The big question: Does the Department of Justice appoint a special counsel?

Ryan Goodman, a professor at New York University School of Law, said the Justice Department’s policy regarding election-related sensitivities would not apply this far in advance of the 2024 presidential election. The only open question for the Department of Justice, he said, would be about the appointment of a special counsel.

“Attorney General Garland will have to consider whether it’s actually in the public interest to appoint a special counsel,” Goodman said. “If that, in fact, does mean slowing down the process unnecessarily, I think it would be right to conclude that there’s no need for it.”

Garland publicly addressed the search at Mar-a-Lago in an August news conference, saying that he personally approved the search warrant and that the Justice Department is “applying the law evenly, without fear or favor.”

Trump’s office did not immediately respond to a request for comment.

The Republican National Committee has said if Trump does announce his 2024 candidacy, it will no longer contribute to his legal expenses. However, the $2 million the RNC has contributed to Trump’s legal expenses since October 2021 has covered only a fraction of his legal bills over that time.

Where the current investigations stand

Norm Eisen, a senior fellow at the Brookings Institution who served as counsel to the House Judiciary Committee in Trump’s first impeachment, said he expects prosecutors both in Georgia and the Justice Department “will kind of put blinders on this early date two years before the next presidential election.”

A 300-page Brookings Institution report by Eisen and others released on Monday concludes that “Trump’s post-election conduct in Georgia leaves him at substantial risk of possible state charges predicated on multiple crimes.” According to the report, those crimes potentially include criminal solicitation to commit election fraud, intentional interference with performance of election duties, conspiracy to commit election fraud and criminal solicitation.

Willis, the Fulton County prosecutor, has indicated the grand jury’s work will conclude by January.

“To the extent it is an effort to manipulate the system,” Eisen said of Trump’s expected announcement on Tuesday, “obviously prosecutors can’t allow potential defendants to game the criminal investigative process the workings of a grand jury or charging decisions in that way.”

Thanks to Lillian Barkley for copy editing this article.

  • Steve Reilly
    Steve Reilly

    Investigative Reporter

    Steve Reilly is an investigative reporter for Grid focusing on threats to democracy.