Mon. Feb 6th, 2023

At some point this year, perhaps as soon as this month, the former president of the United States may be charged with a serious crime. After a years-long elaborate dance with the law in which he usually stayed just one step ahead, Donald Trump now faces at least three serious investigations that could produce criminal charges. He denies wrongdoing in all cases, but many legal experts think that prosecutors have grounds to charge him and will. Others believe that Trump shouldn’t be charged, or that prosecutors might choose not to charge him even if they can.

What actually will happen is unpredictable. We don’t know what pieces of evidence—or even what investigations—might exist that aren’t public, we don’t know how prosecutors will wield the discretion the law affords them, and, of course, we don’t know how a jury might fall on any charges that end up being tried. But the mountains of evidence already before the public—about Trump’s attempt to overturn the 2020 election, about his handling of government documents, and about his previous interactions with the justice system—suggest a fierce conflict to come. “He has learned that due process is the Achilles’ heel of liberal democracy,” Paul Rosenzweig, a former federal prosecutor, told me. “He’s weaponized the court systems all of his life.”

Read: The inevitable indictment of Donald Trump

Despite all of the uncertainty, the information already available makes it possible to know what to watch for, or perhaps where to watch. Here is a field guide to the potential indictments of Donald Trump.

Fulton County

The first movement might come from an investigation in Fulton County, Georgia, which includes part of Atlanta. A special grand jury there conducted a lengthy investigation that began in June 2022 and concluded earlier this month. District Attorney Fani Willis requested the panel after audio emerged in January 2021 of Trump pressuring Georgia Secretary of State Brad Raffensperger to “find 11,780 votes” in the state, enough to surpass Joe Biden’s tally. The grand jury’s work is secret, but it has reportedly interviewed dozens of people, including Senator Lindsey Graham and the former Trump lawyer Rudy Giuliani. Willis appears to be interested not only in Trump’s pressure campaign against Raffensperger but also in a slate of fake electors who gathered in Georgia, and in various claims that Trump allies made about supposed election fraud.

The special grand jury, unlike a normal grand jury, cannot bring indictments; instead, it makes recommendations, and Willis would have to seek indictments from a normal grand jury. When the special grand jury completed its work, it requested that a judge make its report public. Judge Robert McBurney has scheduled a hearing for tomorrow, January 24, on that question, and opinions differ as to whether he is effectively required to release the report or might have discretion on timing. The report is expected to include recommendations for indictments and to reveal much of the scope of the investigation, so its possible release means that Willis is likely to seek charges soon, if she is not doing so already.

Willis would seem to have a wide range of charges she could bring against a range of defendants, but any charges against Trump would likely center on the Raffensperger call. “The tape is the tape and it’s pretty darn compelling by itself, and it looks like it would be the centerpiece of any charges,” Rosenzweig told me. Trump often speaks elliptically and avoids clearly implicating himself, but Barbara McQuade, a law professor at the University of Michigan and a former U.S. attorney, told me that the recording of the call, combined with evidence turned up by the House January 6 committee showing that Trump knew claims of fraud were false, provides both a clear act of wrongdoing and proof of criminal intent.

David French: Georgia has a very strong case against Trump

If Willis does want to charge Trump, she’ll have to decide whether to pursue discrete cases against individuals or a large racketeering case against many. She’s shown a fondness for the latter, most recently in a case against the rapper Young Thug, but a big case would be more complicated and messy, and it would require a huge investment of resources for a county prosecutor’s office. “The only thing worse than not prosecuting would be to bring charges and then to lose,” Anthony Michael Kreis, a law professor at Georgia State University, told me.

But the seriousness of the misconduct might push Willis toward charges despite the risk, and her approach so far suggests an eagerness for both the national spotlight and tough fights. It has also set public expectations. “She has to go up and answer to the voters of Fulton County, and if she doesn’t charge some of these folks for patent violations of Georgia law, she better have a damn good reason,” Kreis said.

Mar-a-Lago Documents

On paper—no pun intended—the probe into Donald Trump’s removal of documents from the White House should be much simpler than the Fulton County case as a matter of law and thus more straightforwardly likely to result in charges against him by the U.S. Department of Justice. It’s not just that Trump removed documents, including classified material; it’s that he repeatedly defied requests to return them and seems to have obstructed the government’s attempts to recover them. From public evidence, many experts view the case as cut-and-dried—legally, at least. “It certainly seems like the law is clear,” Rosenzweig told me. “There’s a relatively narrow, confined set of facts. Prosecutors tend to like small cases, not big cases.”

David A. Graham: Trump opened Pandora’s prosecutorial box

The simplicity of the law doesn’t mean the politics aren’t complicated. Charging a former president—and current presidential candidate—is always going to be more delicate than a typical criminal case. The case would likely have to be brought in Florida, where a jury might be more sympathetic to Trump than in Washington, D.C. Trump might also seek to shift blame to his lawyers, who represented to the government that all documents were returned, and he might succeed. These are all considerations for Jack Smith, whom Attorney General Merrick Garland appointed as special counsel in November to oversee the documents investigation as well as the January 6 probes.

And Smith’s considerations just got more complicated in recent weeks with the revelation that classified documents were found at Biden’s home in Delaware and his think tank at the University of Pennsylvania. Trump has already begun arguing that he is being persecuted for something that Biden also did. Factually, that’s wrong: We don’t know as much about the Biden documents, but there’s no sign of obstruction so far. Garland has appointed a separate special counsel to handle the Biden case, so any decision to charge or not charge him will be somewhat independent. “The cases are completely dissimilar,” Rosenzweig. “That would be stupid, but all you need is one stupid juror. Trials are stories, and there are no slam dunks.”

Charges, or even a conviction, against Trump on the documents case would be somewhat ironic. A man who has publicly committed far more egregious acts—including the two for which he was impeached—getting busted for stolen documents would be a little bit like Al Capone’s conviction for tax evasion. Still, a case would send the message that Trump is not above the law.

January 6

The most interesting case, and perhaps the most consequential for American democracy, involves Trump’s attempts to steal the 2020 election—something often shorthanded as “January 6” but that includes not just the riot that day but also the weeks-long paperwork coup that preceded it. Though Willis’s investigation captures one slice of that, her purview is also restricted to one state among the several where Trump tried to interfere with results. A federal case has the potential to really capture much of the scope of the former president’s plot against American democracy.

Delivering on that potential will not be easy. The scope is enormous: fake electors, the Justice Department mutiny, the actual January 6 riot, the pressure campaign against Mike Pence, and more, all united by the goal of keeping Trump in power despite the outcome of the election in Biden’s favor. Although the House committee uncovered a great deal of evidence, some of it is hearsay and thus not admissible in court, and although in common parlance Trump is clearly to blame, securing a conviction is still tough. “Even if in your heart of hearts you think he is guilty, can you get 12 strangers to agree?” McQuade asked.

Read: The biggest takeaway from the January 6 report

If Smith decides that charges are merited, he could try for a sweeping case—the better to punish the scope of the behavior—or go for something more targeted, which might feel less cathartic but be more likely to end with a conviction. He also has to consider the possible risks of a federal prosecution. “If you ask my opinion, I would say the substantial federal interest in protecting the lawful transfer of presidential power exceeds any collateral consequence,” McQuade said. “How egregious does it have to be before you charge a former president? I would draw the line somewhere before inciting an insurrection.”

Smith also has to watch the clock. On January 20, 2025, a new president could take office—possibly a Republican, perhaps even Trump—which would likely spell the end of any case against him. But Rosenzweig said Trump’s continued presence amplifies the need for accountability too. “If Trump had gone away and faded from the scene, we’d probably let him get away. The specter of indicting a former president is just too terrible,” he said. “But he and his party have made January 6 a rallying cry, and that is going to make it harder to say no.”

Manhattan

One enigma is an investigation by the Manhattan district attorney. That office recently obtained a conviction of the Trump Organization for tax fraud and other crimes. Previously, it had been investigating other allegations, including claims that the company paid hush money to a porn actor who said she had sex with Trump. That investigation appeared moribund—and its lead prosecutors left the office—but it has recently shown signs of life, including an interview with the estranged Trump fixer Michael Cohen and a warning to a former prosecutor that his book could hurt the probe. Little is clear about what charges, if any, could result, or when.

The Next Steps

Say one of these prosecutors does indict the former president of the United States. What happens next? Some answers are pretty clear; the really big ones are not.

If Trump is indicted, he’ll have to be booked and fingerprinted like any other defendant, whether that’s at the Fulton County jail or some federal courthouse. Don’t expect a dramatic perp walk with windbreakered FBI agents leading him, though. Trump’s lawyers would likely arrange a time for him to come in, and bail conditions would be agreed upon ahead of time, but he’d have to appear before a judge. Then would come a seemingly endless slog of procedural motions, legal maneuvers, and discovery—all elongated as much as possible by the defense to run out the clock, exhaust the government, or find weaknesses, and all appealed as often and as high as possible.

David A. Graham: The tragedy of the Congress

If a prosecutor actually managed to get to trial, they would then have the huge task of convicting Trump. Few will bring cases they don’t think they can win, but nothing is a sure bet. Even something as plain Trump’s call to Raffensperger might play differently in court, Titus Nichols, a defense attorney and former prosecutor in Georgia who represented the whistleblower Reality Winner, told me. “If a regular person had done that, they’d be indicted, no question,” he said. “When you’re a person with resources or you’re famous, then everyone wants to give you the benefit of the doubt.” Prosecutors might also manage to convict some lower-level players but not Trump.

If Trump is indicted and convicted, the charges are ones that could very well lead to incarceration, as Willis herself has noted. “If someone were convicted of one of these serious crimes, a prison sentence would be likely,” McQuade told me. But other observers think it’s doubtful that Trump will ever see the inside of a jail cell, given the complications and the length of probable appeals.

All of these considerations make for nearly impossible decisions for prosecutors. When I joked to Rosenzweig that he didn’t sound like he envied Jack Smith, he quickly corrected me. “I do envy him, in that he’s got a really exciting and interesting job, but I would not want to be him or Merrick Garland,” he said. “They’re damned if they do and damned if they don’t. Trump has broken the system, and there are no good choices.” For Garland and Smith—and Willis, too—the task is to find the least bad option, and then pursue it with care.

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