As a businessman and president, Donald Trump was the target of numerous lawsuits and criminal inquiries, but he consistently escaped the legal spotlight with his reputation and standing in society largely intact.
But it’s possible that he has never faced an investigation as dangerous as the Mar-a-Lago probe, which is looking into possible mishandling of top-secret documents. The appointment of a special counsel by the Justice Department who has a reputation for being aggressive, as well as the removal of a Trump-requested independent arbiter in the case and judges’ categorical rejection of his attorneys’ arguments, have all increased the sense of vulnerability in recent weeks.
It is impossible to forecast how long the investigation will last or whether the Justice Department will go so far as to indict a former president and a current candidate. But unlike when he was president, Trump is no longer immune from prosecution, and according to some legal professionals, the Mar-a-Lago investigation is more focused on straightforward factual and legal issues than the previous investigations he has dealt with.
If charges are ultimately filed, “prosecutors won’t have that difficulty, won’t have that challenge to explain what the crime is about,” according to former Justice Department prosecutor Robert Mintz. “Unlike many of these past investigations that involved these complex financial frauds where prosecutors have to explain to a jury why the conduct is even a crime to begin with.”
The work of a special master, who had been tasked with an independent review of the thousands of documents seized in the FBI’s search of Mar-a-Lago, was terminated by an appeals court panel last week. The panel included two judges who were appointed by Trump. Prosecutors can now use the entire collection of records for their investigation thanks to the decision.
The court acknowledged that a search of an ex-property president’s is unusual, but not so unusual as to give him special treatment in a scorching opinion that spanned centuries of history.
State prosecutors in New York last year indicted Trump’s company, the Trump Organization, and its longtime chief financial officer; however, the former president was not brought up in the case. In a lawsuit, not a criminal investigation, the New York attorney general accused Trump of inflating his net worth by billions of dollars and deceiving banks in September.
An earlier special counsel, former FBI Director Robert Mueller, looked into whether his successful 2016 campaign had improperly colluded with Russia and whether he had attempted to obstruct that investigation while he was president. In the end, Mueller cited a long-standing Justice Department policy that forbids the indictment of a president in office as well as a lack of evidence supporting his claim of a criminal conspiracy between the campaign and Russia.
An examination of constitutional law and the extent of presidential power was required for the obstruction portion of that investigation. But in the Mar-a-Lago investigation, prosecutors have largely downplayed the significance of Trump’s prior office, arguing during a legal battle over the special master that the secret documents he had access to as commander-in-chief are no longer his property.
The records investigation had been simmering for several months before the FBI searched Mar-a-Lago on August 8 and removed about 100 documents with classification markings. Officials from the Justice Department claim that at that point they had developed probable cause to think that obstruction as well as crimes involving the retention of national defense information had been committed.
Jack Smith, who previously oversaw the Justice Department’s public integrity division and most recently worked as a war crimes prosecutor in The Hague, is in charge of the investigation. As part of a separate Justice Department investigation into Trump and his allies’ attempts to overturn the results of the 2020 presidential election, Smith is also in charge of several key areas. Separate investigations into efforts to overturn the outcomes in that state are being conducted by the district attorney of Fulton County, Georgia.
Legal professionals anticipate the Justice Department to consider more factors than just the strength of the evidence when determining whether to move forward with a case. There will be concerns about the amount of classified information that can be presented to a jury as well as the viability of selecting an impartial jury in light of Trump’s widespread name recognition and the fervent responses he elicits from both sides of the argument.
A former president’s prosecution also runs the risk of being perceived as political, further dividing an already divisive nation, and turning a courtroom into a circus-like setting.