Donald Trump will likely be indicted, but here’s why he shouldn't be | Opinion

I am a retired district attorney and retired judge, and I believe President Donald Trump is headed for grand jury indictments on two fronts.

First, the Jan. 6 Committee hearings will end with a demand for indictment.  And the shocking search of Trump’s home will give indictment enthusiasts fodder for a similar demand.

Never mind that the chance of a final criminal conviction in either case is almost nil or that indicting Trump will divide the country.

Running parallel with the Jan. 6 Committee rush to indict is the search warrant debacle, where the Trump family home was searched by agents of the Federal Bureau of Investigation

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 Department  of Justice then asked the same judge to seal the affidavit so whether or not there was probable cause for the search could not be determined.

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Proof beyond a reasonable doubt is required

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.

Here the judge unsealed the affidavit, but only after allowing the Department of Justice to black-ink out half of it, which is all just part of the game.

The fatal flaw with indicting Trump in either case is that every crime being suggested requires proof beyond a reasonable doubt of some special mental state, such as intent, knowledge, or belief. Which will be next to impossible to prove.

The Jan. 6 Committee members know this, so they will drag hearings out as long as possible, then pressure the Department of Justice to indict. Which would bring lengthy delays for motions to be heard and rulings to be appealed. The long- range Committee objective being to cripple Trump politically so he cannot remain a viable candidate in the 2024 presidential election.

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Another factor weighs against indictment

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.

The Jan. 6th hearings and the search warrant proceedings may be headed toward grand juries, but will a grand jury indict, whatever the evidence presented?  Yes. As a district attorney, I advised grand juries and obtained indictments from them.

I know there is basis for the wry adage “a grand jury would indict a ham sandwich if the prosecutor asked.” Like the Jan. 6 Committee hearings, neither the suspect nor his attorney may appear, there is no cross-examination of witnesses, hearsay and other evidence inadmissible at trial is allowed, and the prosecutor need not reveal any exculpatory evidence.

When the Jan. 6 hearings conclude, its committee will demand indictments.  And a host of Department of Justice attorneys will maneuver for a role in the historic indictment and trial of a former President.  It is the stuff of dreams, the fast track to prestigious law firm partnerships, federal judgeships, and elected office.

Any decision to indict Trump must come from the top, Attorney General Merrick Garland. If he obeys the traditional prosecutorial code of ethics, he will reject the Jan. 6 Committee demand for a show indictment.  And also resist his Department of Justice attorneys’ arguments for the same.

If Garland chooses the ethical path, and declines to seek indictments, he will earn respect for putting principal above politics.

Unless he does, Donald Trump will be indicted.

David Minier of Spring Hill is a former district attorney of California’s Santa Barbara and Madera counties and a retired judge of Madera County.

This article originally appeared on Nashville Tennessean: Donald Trump will likely be indicted, but here’s why he shouldn't be