Opinion | This Is What’s Going to Happen If Candidate Trump Gets Indicted

Donald Trump announced his third run for president Tuesday night in a move that was widely perceived as a gambit to stave off a federal criminal indictment. It won’t work. Trump is likely to be indicted by the Department of Justice, making him the first former president to campaign for the White House while facing charges. The historic nature of this scenario seems fitting for a candidate who has defied every norm of American politics during his seven-year career in public life. While unprecedented, there are certain realities of federal prosecutions that offer a useful roadmap for how the next two years will likely play out in the courts.

1. Will Trump’s announcement affect the Justice Department’s decision to indict him?

Not really. Donald Trump was the immediate past president and one of the most well-known and controversial politicians in the United States. He has been widely regarded as the de facto leader of the Republican Party and a likely nominee. DOJ would not have opened a criminal investigation into Trump if they weren’t willing to consider indicting him.

In other words, the fallout of a potential indictment of Trump was already baked in to DOJ’s decisionmaking. Even if Trump hadn’t announced, they would have faced the same criticism, and Trump would have likely argued that he was indicted to deter him from announcing his candidacy in the future.

2. When would the DOJ issue an indictment?

I wouldn’t be surprised if the Justice Department waited until after the Georgia Senate runoff on Dec. 6 to make any overt steps — an indictment, execution of another search warrant or an arrest. Once that political event has passed, charges could come before or after the holidays.

3. But there’s a lot of speculation that Garland will appoint a special counsel. Is that likely?

Attorney General Merrick Garland was reportedly considering appointing a special counsel if Trump announced a run for president. Appointment of a special counsel essentially creates an ad hoc U.S. Attorney’s Office that has the power to investigate and prosecute specified matters. Garland could still overrule the special counsel, but he could not do so without informing Congress.

A special counsel (which I have recommended in other circumstances) is a good idea because the appointment of a career prosecutor who has no connection to President Joe Biden or his appointees would offer some measure of independence, particularly if Garland stated in advance that he would follow the Special Counsel’s recommendation.

4. Wouldn’t that slow things down?

The potential appointment of a special counsel has raised concerns that it would take years to conclude. This fear could be due to the lengthy investigation conducted by former special counsel Robert Mueller, which lasted nearly two years.

But this case would be different because the DOJ is already investigating Trump and the same FBI agents could work with the special counsel’s office. Some of the career prosecutors at DOJ could be hired and work for the new special counsel. The appointment of a special counsel would slow things down by weeks, not months, if at all. The prosecution of Trump would be more like Mueller’s prosecution of one-time Trump campaign chairman Paul Manafort, who was indicted within about five months of Mueller’s appointment because much of the investigative work had already been done.

5. What will Trump likely be indicted for?

Ever since Trump refused to return all the classified material he held at Mar-a-Lago, even after the Justice Department served him with a grand jury subpoena and demanded its return, charges relating to his willful retention of classified material have been likely. Obstruction of justice is also a possibility, depending on the evidence developed by prosecutors.

As I’ve written before, Trump’s determination to keep highly classified documents at his residence in South Florida even after the federal government told him they were classified and demanded their return is much more like the straightforward crimes I prosecuted as a junior federal prosecutor — bank robbery and narcotics trafficking — than the complex white-collar crimes I later spent years investigating and prosecuting.

White-collar crimes like fraud or obstruction usually turn on the defendant’s intent. There is usually no question that the defendant filed his tax returns. But did he do so with the intent to defraud the IRS? But not all crimes are that complicated. In a narcotics case, if you possess heroin or cocaine, you’re guilty. You can argue that you didn’t really know it was narcotics — maybe you thought it was powdered sugar — but that is rarely a viable defense.

By keeping Top Secret documents even after he received a grand jury subpoena and a personal visit from the DOJ demanding their return, Trump served up a very easy case to the DOJ.

6. What about charges stemming from the Jan. 6 attack?

While it’s possible that the DOJ could eventually develop sufficient evidence to charge Trump with incitement or making a false statement to the federal government or a scheme to defraud the United States in connection with the fake elector scheme, those crimes turn on Trump’s intent or state of mind and are thus more difficult to prove.

For that reason, I expect DOJ to focus on the crimes involving Trump’s retention of classified material and other governmental records. It’s possible that DOJ will add obstruction charges related to those documents because they are factually intertwined with the other charges and highlight evidence that suggests that Trump had a consciousness of guilt that could convince jurors to convict on the other counts.

7. Are others in Trump’s orbit likely to face criminal charges?

Possibly. Some of his associates may have helped him hide documents or obstruct justice, which could lead DOJ to include them in the indictment. There are also separate investigations of other Trump associates such as Jeffrey Clark. Clark could be indicted regardless of what the DOJ does with Trump.

8. If Trump is indicted, would the trial happen before the November 2024 election?

After an indictment, the process would slow down.

Typically defense counsel get months to review evidence, and in a case involving so many classified documents, that could be a slow process. The defense will file motions, which the judge could take months to consider. Trial would likely be 12 to 24 months away, in other words a range that would cover the entirety of the election year.

Although Trump has a right to a speedy trial — a trial in 70 days or less from indictment — most criminal defendants waive that right and drag out the process. When I was a federal prosecutor, some defendants created enough delay to drag the process out for years before trial. Given the circumstances, however, I think most judges would likely ensure that a trial was scheduled well before the end of Biden’s term to reduce the impact that a criminal trial would have on the 2024 election.

9. Can Trump still run for president if he’s convicted? Can he serve as president if he wins the election while in prison?

Trump would not be sentenced until months after his conviction and could potentially remain out of prison pending appeal. But a conviction or even imprisonment would not bar Trump from running for president. The Constitution sets the requirements for presidential candidates, and a clean criminal history is not one of them.

Some have wondered if a convicted but still unsentenced Trump could be inaugurated and assume control of the Oval Office. While presumably that could occur, the imposition of a sentence of imprisonment on a sitting president is almost too bizarre to even contemplate and would certainly raise constitutional issues that the Supreme Court would ultimately resolve.