Trump faces peril in docs probe
Case the most clear cut accusation of criminality to date
As a businessman and president, Donald Trump faced a litany of lawsuits and criminal investigations yet emerged from the legal scrutiny time and again with his public and political standing largely intact.
But he’s perhaps never confronted a probe as perilous as the Mar-a-Lago investigation, an inquiry focused on the potential mishandling of topsecret documents.
It’s impossible to predict how much longer the investigation will last or whether the Justice Department will take the unprecedented step of indicting a former president and current candidate. But Trump is no longer shielded from prosecution the way he was as president, and some legal experts regard the Mara-Lago investigation as centred on more straightforward factual and legal questions than the prior probes he has dealt with.
“Unlike many of these past investigations, which involved these complex financial frauds where prosecutors have to explain to a jury why the conduct is even a crime to begin with, here prosecutors won’t have that difficulty, won’t have that challenge to explain what the crime is about” if charges are ultimately filed, said former Justice Department prosecutor Robert Mintz.
One investigative hurdle for the Justice Department was lifted last week when an appeals court panel that included two Trump-appointed judges ended the work of a special master who’d been tasked with an independent review of the thousands of documents seized in the FBI’s search of Mar-a-Lago. The decision enables prosecutors to use the entire cache of records for their investigation.
The investigation has since shown signs of accelerating, with the Justice Department presenting evidence before a grand jury and granting immunity last month to a Trump ally to secure his testimony.
The probe is being run by Jack Smith, who previously led the Justice Department’s public integrity section and more recently has served as a war crimes prosecutor in the Hague. Smith’s appointment by Attorney General Merrick Garland came three days after Trump declared his White House candidacy. The announcement won’t stop the investigation, though it may quicken the pace so as to avoid colliding with the heart of the 2024 presidential race.
His candidacy could theoretically infuse the investigation with greater import, said former federal prosecutor Franklin Monsour Jr, since it will no longer be just about a former president. “It’s now about someone trying to become president again, and trying to possess national security material again.”
Yet, legal experts expect the Justice Department to weigh more than just the strength of evidence in deciding whether to proceed with a case. There will be questions over how much classified evidence it can present to a jury — and the feasibility of picking an impartial jury given Trump’s ubiquitous name recognition and the impassioned reactions he produces on both sides.
A prosecution of a former president also risks being seen as political, further polarising an already divided country, as well as transforming a court into a circus-like atmosphere.