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In early August, the DOJ ended an implicit tradition by having the FBI raid the home of a former president, in this case, Donald Trump. Since then, many back and forths have ensued, but there is one question that keeps echoing among Democrats and Republicans. Will Donald Trump finally be prosecuted?
In favor of prosecuting Trump
As pointed out by law professor Andrew P. Napolitano in a column in the Washington Examiner, the justice system could indict and subsequently prosecute the former president for at least three crimes: “Removing and concealing national defense information (NDI), giving NDI to those not legally entitled to possess it, and obstruction of justice by failing to return NDI to those who are legally entitled to retrieve it.”
In other words, the feds must prove that Trump knew all three of these things.
Moreover, the tycoon’s defense could complicate matters in a potential case. It turns out that the FBI did not raid his home simply for possessing these documents, classified or not, but for keeping them in a non-federal facility, being handled by third parties without authorization, and for “hiding” them from the DOJ. Therefore, declassification of the documents, one of the first defenses outlined by Trump, at least publicly, would not help dismiss the potential charges.
The most novel aspect among the possible charges against Trump is that of “obstruction.” In this case, it is not the concept popularized during Robert Mueller’s investigation but the one that appears in a statute signed by George W. Bush in 2002.
According to this somewhat looser definition, it will be an obstruction when the defendant has government property, knows he has it, and baselessly resists the government’s efforts to retrieve it.
“Where does all this leave Mr. Trump? The short answer is: in hot water. The longer answer is: He is confronting yet again the federal law enforcement and intelligence communities for which he has rightly expressed such public disdain. He had valid points of expression during the Russia investigation. He has little ground upon which to stand today,” Napolitano said of the case.
Against prosecuting Trump: beyond a reasonable doubt, there is lack of evidence
Just as everything that goes up must come down, if there are arguments against, there are also supporting arguments. David Minier, retired district attorney for Santa Barbara and Madera counties and retired judge for Madera County, California, also weighed in on the case in an opinion column, this time for The Tennessean.
According to the former magistrate’s judgment, the potential case got off on the wrong foot. “The search was based on a questionable warrant signed by a judge who should have disqualified himself because of his past criticism of Trump on social media,” the former judge said.
In addition, Minier remarked that the DOJ asked the same judge “to seal the affidavit so whether or not there was probable cause for the search could not be determined.”
“As a trial judge, I signed search warrants and heard motions to quash them and recognize this as a common prosecution ‘hide the ball’ tactic, by claiming that to unseal the affidavit would jeopardize an ongoing investigation and expose confidential informants,” he added.
As is already public knowledge, the DOJ blackened half of the affidavit, something that, according to Minier, “is just part of the game.”
While there is an old judicial saying that “a grand jury would indict a ham sandwich if the prosecutor asked,” the former judge maintains that “there are agreed, albeit unwritten, ethical standards for prosecutors. Foremost is never to file a criminal action unless you believe you can prove guilt beyond a reasonable doubt to a jury. It is unethical to seek indictments solely for publicity, harassment, or political purpose. Attorney General Merrick Garland is the nation’s top prosecutor and should act like one. He knows there are ethical standards for prosecutors, and he should follow them.”
Finally, and to answer the question that prompted the article, David Meinier concluded, “If Garland chooses the ethical path and declines to seek indictments, he will earn respect for putting principle above politics. Unless he does, Donald Trump will be indicted.”
Even if he is indicted and convicted, will Trump be able to run for president in 2024?
According to the Constitution, which has little chance of changing in the next few years, the only requirements necessary to aspire to be in the Oval Office are the following: to be born in the United States and have lived in the country for more than 14 years, to be over 35 years old and not to have served eight years as president. At the moment, Trump meets every one of them, which would qualify him for another presidential search, should he so desire.
Joaquín Núñez es licenciado en comunicación periodística por la Universidad Católica Argentina. Se especializa en el escenario internacional y en la política nacional norteamericana. Confeso hincha de Racing Club de Avellaneda. Contacto: [email protected] // Joaquín Núñez has a degree in journalistic communication from the Universidad Católica Argentina. He specializes in the international scene and national American politics. Confessed fan of Racing Club of Avellaneda. Contact: [email protected]