'Not above the law': Why Trump's decision to run for president won't change his legal woes
Trump begins a new presidential bid facing substantial legal threats from federal prosecutors and in Georgia. The protections for a sitting president aren't available to candidates, experts said.
- As a 2024 candidate, Trump is a private citizen and isn't immune from prosecution.
- Trump legal investigations include several by the U.S. Dept. of Justice and a Georgia prosecutor.
- Attorney General Merrick Garland has said that politics won't factor into DOJ investigations.
WASHINGTON – Donald Trump's decision to run for president in 2024 has once again thrust to the fore fundamental questions about how prosecutors would handle the panoply of investigations still smoldering from his previous stint in the White House.
Would President Joe Biden's administration take the historic step of prosecuting a political rival? How might a high-profile criminal or civil case proceeding against Trump during a presidential campaign be viewed by voters? What are the implications for the Department of Justice if prosecutors charged Trump but failed to win a conviction?
What's clear: In the eyes of the law, Trump will remain a private citizen during his campaign – unable to rely on protections from prosecution he enjoyed as president.
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"If running for president inoculated you from being indicted by DOJ, the entire Gambino Family would be candidates," Andrew Weissmann, a former federal prosecutor and a New York University law professor, quipped on Twitter before Trump's announcement.
Beyond that, experts say an unprecedented decision to indict a former president would be politically perilous for both Trump and Biden. That doesn't mean it won't happen.
Will Donald Trump's legal troubles go away now that he's running for president in 2024?
The short answer to that question: No.
"The reality of the political situation is unavoidable," said Kenneth Gross, senior political law counsel at Akin Gump. "However, Mr. Trump is a private person and he's not above the law and if they have a viable case, the fact that he's a candidate should not and would not change that."
For a sitting president, the landscape is less clear. The Department of Justice has opined that a "sitting president is constitutionally immune from indictment and criminal prosecution." Former special counsel Robert Mueller noted the department's policy following his investigation into Russian interference in the 2016 presidential election.
Next phase:Prosecutors in Georgia are investigating election interference
The Supreme Court in 2020 ruled that presidents could be subjected to criminal subpoenas, but they also have special protections – such as executive privilege – that generally allow them to withhold information and documents from the other branches of government if disclosure would impair executive functions or decision-making.
But those protections don't apply to presidential candidates.
Do prosecutors consider politics when deciding whether to continue investigations or indict candidates?
How much do prosecutors consider the potential political ramifications of a case? Technically speaking, politics don't a play a role. Attorney General Merrick Garland, a former federal appeals court judge, has repeatedly said he would follow investigations wherever the facts and the law lead. But the answer can be trickier in practice.
Prosecutors have a great deal of discretion in deciding whether to pursue charges.
Sometimes, in an effort to avoid the appearance of politics, the department will appoint a special counsel to oversee an investigation. Justice Department officials have discussed such an appointment, CNN reported this month citing unnamed sources. But the decision whether to prosecute would ultimately rest with Garland.
"Of course, the department has to assure that a person is not investigated or prosecuted because of politics, and that risk is more serious if the person is a serious candidate," Weissmann said in an email. "But that concern can be met by the strength of the case and the DOJ precedent of charging similarly situated folks."
What's the status of the Trump legal investigations and cases?
The Justice Department has been pursuing at least three avenues of inquiry: what role Trump had in efforts to subvert the 2020 election; the summoning of the mob in the deadly assault on the Capitol in 2021; and the former president's handling of classified documents that prompted an unprecedented search of his Mar-a-Lago resort.
Federal prosecutors have been most explicit about the possible criminal consequences in the documents investigation, indicating that authorities are weighing possible violations of the Espionage Act and obstruction of justice.
In New York, meanwhile, Trump faces a civil lawsuit accusing the former president and his adult children of massive fraud in the operation of the family real estate business. That legal action by New York Attorney General Letitia James, a Democrat, seeks $250 million in penalties and could impact the Trump Organization's finances and assets.
A parallel criminal investigation into the family’s financial dealings, while believed to be stalled for some months, also is pending with the Manhattan District Attorney’s Office.
Officials in Georgia, meanwhile, are moving closer to a decision on whether to bring criminal charges against Trump and his allies in a wide-ranging investigation into interference in the 2020 presidential election.
Atlanta-area District Attorney Fani Willis, a Democrat, is considering a range of possible crimes, from solicitation of election fraud and false statements to conspiracy, oath of office violations, racketeering and violence associated with election-related threats.
The criminal and civil investigations are in addition to a congressional inquiry by a special House committee that has been closely examining the Jan. 6, 2021 Capitol attack and Trump's role in it. The panel is expected to issue its final report next month.
What they're saying about the impact of Trump's candidacy on his legal problems
David Weinstein, a former federal prosecutor in Miami, said Trump’s potentially daunting legal problems are not likely to go away simply because he has announced a 2024 campaign for president.
"It strikes me as absurd that anyone facing this kind of jeopardy, could somehow expect to be shielded simply by running for office, if that’s what his intentions are," Weinstein said.
Weinstein said the Justice Department could consider the appointment of a special counsel to oversee the ongoing federal investigations as a potential firewall from political influence. But Weinstein doesn’t believe that is necessary, because Trump has only announced his candidacy.
"He's no longer the sitting president; it's not even clear that he would be the Republican nominee at this point," Weinstein said. "He's just a citizen, like anybody else, and the legal system should treat him like anybody else."
Norm Eisen, who served as special counsel to the House Judiciary Committee during Trump's first impeachment, said the former president remains at risk whether he runs again or not.
In an analysis of the Georgia election investigation for the Brookings Institution, Eisen and a bipartisan group of legal analysts concluded that Trump "appears to be at substantial risk of prosecution for both election and non-election crimes in violation of Georgia state law.
"I don't think (the Fulton County district attorney) has spent nearly two years of work to give him a pass."
Contributing: Bart Jansen, David Jackson