Will Trump’s Announcement and his Losses on Election Day Deter or Incentivize Prosecutors  in Bringing Criminal Charges?

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Not unlike that time period before election night a week ago where it was difficult to confidently predict the election results because of seemingly inconsistent data and conflicting inferences, recent political events involving Donald Trump raise questions as to whether or how they will impact a charging decision against Donald Trump by either the Department of Justice or the Fulton County District Attorney’s Office in Georgia.

First of all, Trump is now an announced candidate for President and no prosecutor will relish the fact of indicting a boisterous candidate, who will then claim to his followers that he is only being charged because of a partisan attempt to derail his candidacy.  No doubt, one of Trump’s primary motivations for this early announcement was to get out in front of a possible indictment so as to be able to scream: “foul.”

Attorney General Merrick Garland is a cautious man, but this boisterous and baseless argument by Trump will make him even more cautious.  But I believe it is a mistake to confuse caution with weakness and a lack of resolve.  The political “hit job” argument may slow Garland down a bit, but Garland believes passionately in the Rule of Law and he will ultimately carry out his duty when he feels like he has a case.   (The real danger is he may take too long to make a decision.)

It would be absurd if a person could be immunized from prosecution simply because they announce that they are running for President.  Under that precedent, a leader of the Proud Boys, the Oath Keepers, or some other extremist group could announce that they are running for President on some independent ticket once they believe they could be criminally charged.

As to the Fulton County Prosecutor’s Investigation by District Attorney Fani Willis, her investigation is unique to the attempted fraud as to the Georgia phony electors and Trump’s attempt to influence public officials in Georgia so as to obstruct the legitimate outcome of the election.  All District Attorney Willis need do is forestall the submission of a case to the Grand Jury until after the Georgia runoff between Senator Raphael Warnock and Herschel Walker on December 6, 2022.

There is actually interesting precedent in New Jersey for continuing a major criminal prosecution even thought a defendant is in the middle of a political campaign.  In 1969, the United States Attorney’s Office indicted Mayor Hugh Addonizio of Newark, several counsel men and public officials, and a number of alleged organized crime figures on corruption charges involving lucrative municipal contracts.  Mayor Addonizio was running for re-election against Kenneth Gibson.  Not only was the trial of Mayor Addonizio not delayed because of the election, but the trial actually continued during the May election and June runoff between Addonizio and Gibson.

Over a decade later, in the early 1980’s, the powerful state Senator and Mayor of Union City, William Musto, was indicted on racketeering and corruption charges with numerous co-defendants for a bribery scheme arising out of the building of Union City Schools.  The trial took place in the months immediately prior to Musto’s Mayoral election, and Mayor Musto was convicted within a month or two prior to his election in 1982.He was actually sentenced the day before his re-election bid for Mayor.   (Ironically, Musto was re-elected the day after his sentencing, and his election was vacated shortly thereafter by a court on the grounds that his conviction caused him to forfeit his right to hold office.)

Most commentators have observed that Trump was seriously wounded by the election results in the 2022 midterms.  Not only did the much anticipated “red wave” fail, but the Democrats retained control of the Senate and the GOP will control the House only by a few seats.  More ominously for Trump, most candidates that ran on the “2020 election denial” platform were defeated, and the false claims of election fraud in the presidential race, according to polls, were soundly rejected by independent and moderate voters.  The logical conclusion from the rejection of Trump’s “big lie” argument is that only the hard-core Trumpists and far-right extremists will be receptive to a new Trump claim that he is the victim of a political “hit job,” if indicted by the Federal authorities or in Georgia.

The defeat of the election deniers and the rejection of the “big lie” candidates may only serve to embolden, not deter, a prosecutor who is on the fence.   The decision-making prosecutor could believe they will face backlash from the Trumpists and the extreme right but not from the country as a whole, if charges are brought which are based upon law and fact.  In my view, the midterm election results may make Trump a more inviting or at least a less dangerous target.

As stated in the outset, the political cross-currents arising out of a prosecutor’s decision to indict a former President who is running for re-election may have the potential to have an impact on the decision-making process.   In my view, upon reflection the prosecutors in question will decide whether or not to indict based on whether they think there is a “provable case.”  If so, the Rule of Law will prevail over political noise.   From what I have seen as to each investigation, there appears to be a basis in law and fact for each prosecutor to bring charges.

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