Opinion | How Announcing His 2024 Campaign Could Be Trump’s Best Legal Defense

Donald Trump appears to be inching closer to announcing a reelection bid — a move that would upend national politics (again) and that could also dramatically complicate any ongoing efforts by prosecutors to target Trump for his conduct in the White House.

The notion has been picking up steam for weeks in the political press, with a New York Times story reporting a couple weeks ago that Republicans were “bracing for Donald J. Trump to announce an unusually early bid for the White House, a move designed in part to shield the former president from a stream of damaging revelations emerging from investigations into his attempts to cling to power after losing the 2020 election.” On Thursday, New York magazine published a story devoted to the subject in which the former president remained outwardly coy about what he will do but told the writer, “In my own mind, I’ve already made that decision.” When the midterms came up, Trump mused, “Do I go before or after? That will be my big decision.” A separate story from the Washington Post reported that Trump is “now eyeing a September announcement.”

According to New York, “Trump swears that shielding himself from prosecution is not among his reasons for running for president because he is not at any risk of being prosecuted,” but the claim is difficult to take at face value. A formal announcement would trigger campaign finance restrictions and scrutiny that Trump has thus far managed to avoid. It is for that reason that Dan Pfeiffer, a onetime White House Communications Director during the Barack Obama administration, recently said that the announcement of a reelection bid this early by Trump “would be truly one of the stupidest decisions any presidential candidate has ever made.”

Pfeiffer’s assessment was based on the legal and fundraising restrictions that would kick in, but he noted — correctly — that Trump’s legal problems may have altered Trump’s calculus. In fact, it has been clear for quite some time that a reelection bid would be one of Trump’s most potent legal defense strategies, both against the ongoing criminal investigation in Georgia stemming from Trump’s call with Secretary of State Brad Raffensperger and whatever it is that the Justice Department is doing.

This is not to say that Trump is likely to be charged by either set of prosecutors, which, needless to say, remains very unclear. He has fended off serious criminal investigations before. But as a legal matter, any competent lawyer representing Trump would have to take even a low likelihood of charges seriously given the possibility, however remote, that they might come — and that they might result in Trump going to prison.

Trump does not have to win a reelection bid for this strategy to pay dividends. For months he has sought to politicize the investigation in Georgia by claiming (ridiculously) that the investigation is racially motivated. If he is actively running, he can complicate matters further and inflame his supporters by claiming that Democrats and prosecutors are simply trying to get rid of him because Joe Biden is a terrible president who is on track to lose a reelection bid. That’s an argument that much of the Republican party and conservative media might easily rally around, however dubious it may be in reality. This could, in turn, disincentivize witnesses from coming forward or being as helpful as possible to investigators and prosecutors, particularly Trump’s fellow Republicans and others who might fear his wrath if there’s a chance he’ll get a second term.

As for the Justice Department in particular, it remains unclear whether or to what extent Trump himself is seriously under criminal investigation, but recent news reporting has suggested that the department has been reluctant to broach Trump’s criminal exposure directly. The Jan. 6 select committee’s hearings could exert pressure on the department to change its posture, but on the other hand, the Justice Department under Attorney General Merrick Garland may be reluctant to seriously investigate (much less actually prosecute) an active presidential candidate for fear of the political optics. This is a problem of the department’s own making — one that could and should have been avoided — but that does not make it any less real given where things stand today.

If Trump were to get the GOP nomination and then run and lose to Biden, there would be concerns (again) about the propriety of a president investigating his onetime opponent. Those concerns were grossly miscalibrated given the serious questions about Trump’s conduct following the 2020 election and the long-term implications for our democracy of failing to properly investigate them. But Biden himself voiced them during his first match-up with Trump. Indeed, such optics concerns may have influenced Biden’s decision to appoint Garland in the first place and the Justice Department’s apparent reluctance, in turn, to aggressively pursue Trump.

And of course, if Trump were to run and win, the idea that he might be successfully criminally prosecuted by anyone could vanish as a practical matter. The notion that a local prosecutor in Georgia might somehow be able to prevent a winning presidential candidate from taking power seems unlikely and wrong (and, in fact, is yet another reason it should not have been left to them). At the federal level, Trump would presumably appoint someone like Jeff Clark to run the Justice Department, shut down whatever remains of an investigation that might implicate him, and perhaps pardon a bunch of people convicted over their role in Jan. 6 and Trump’s illegitimate efforts to remain in power.

For better or worse, Trump’s decision to run again would have major implications and significant benefits for him from a legal perspective. He and his lawyers would be foolish not to heavily consider them, which is why, despite whatever Trump may say, they have probably already been doing exactly that.