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

In a move that was widely perceived as a ploy to stave off a federal criminal indictment, Donald Trump announced his third run for president Tuesday night. It won't do anything. The first former president to campaign for the White House while facing charges is likely to be Donald Trump. The historic nature of this situation makes sense for a candidate who has been in public life for seven years and has never shied away from challenging the status quo. There are certain realities of federal prosecutions that offer a useful road map for how the next two years will play out.

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

It's not really. One of the most well-known and controversial politicians in the US was Donald Trump. He is seen as the defacto leader of the Republican Party. The DOJ wouldn't have opened a criminal investigation into Trump if they didn't want to indict him.

The consequences of an indictment of Trump were already baked into the decision making of the DOJ. If Trump hadn't announced, they would have faced the same criticism, and he would have argued that he was indicted to deter him from announcing his candidacy.

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 December 6 to make any overt steps. It is possible that charges will come before or after the holiday season.

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

Garland was considering appointing a special counsel if Trump ran for president. An ad hoc U.S. Attorney's Office is created by the appointment of a special counsel. Garland was able to overrule the special counsel, but he had to inform Congress.

If Garland stated in advance that he would follow the Special Counsel's recommendation, the appointment of a career prosecutor who has no connection to the president would offer some measure of independence.

4. Wouldn’t that slow things down?

Concerns have been raised about how long it would take for a special counsel to be appointed. It is possible that this fear is due to the investigation conducted by Robert Muller.

This case would be different because the DOJ is already investigating Trump and the FBI agents could work with him. The new special counsel could potentially hire some of the career prosecutors at DOJ. The appointment of a special counsel would take a long time. The prosecution of Trump would be similar to that of the one-time Trump campaign chairman, Paul Manafort, who was indicted within about five months of the appointment of the special counsel.

5. What will Trump likely be indicted for?

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, charges relating to his willful retention of classified material have been likely. There is a possibility of obstruction of justice.

I have written before about 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.

The intent of the defendants in white-collar crimes is usually the determining factor. There is no question that the defendants filed their taxes. He may have done so with the intention to cheat the IRS. Not every crime is that complicated. If you possess drugs, you are guilty. You can argue that you didn't know it was narcotics, but that's not a valid defense.

Trump served up a very easy case to the DOJ by keeping Top Secret documents even after he received a grand jury subpoena.

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

If the DOJ develops enough evidence to charge Trump with 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.

I expect the DOJ to focus on the crimes related to Trump's retention of classified material. It is possible that DOJ will add obstruction charges related to those documents because they are intertwined with the other charges and highlight evidence that could convince jurors to convict on the other counts.

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

It's possible. Some of his associates may have aided and abetted him in hiding or obstructing justice. Jeffrey Clark is one of the Trump associates being investigated. Regardless of what happens with Trump, Clark could be indicted.

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

The process slowed down after an indictment.

Typically defense counsel get months to review evidence, but in a case involving so many classified documents that could take a long time. The judge could take a long time to consider the motions filed by the defense. The trial range would cover the entire election year.

Trump has a right to a quick trial, but most criminal defendants don't want to go to trial. I think most judges would make sure that a trial was scheduled before the end of Biden's term in order to reduce the impact that a trial would have on the 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?

After his conviction, Trump could potentially remain out of prison pending his appeal. Trump can run for president even if he is convicted or imprisoned. A clean criminal history is not a requirement for a presidential candidate.

Is it possible that Trump could be inaugurated and take control of the Oval Office despite his criminal record? A sentence of imprisonment on a sitting president would raise constitutional issues that the Supreme Court would ultimately resolve, so it's almost too weird to even think about it.