CNN
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Donald Trump is heading for a period of maximum legal and political risk over his role in the US Capitol insurrection and hoarding of classified documents that will collide with his efforts to electrify a low wattage 2024 White House bid.
A quickening special counsel probe, now focusing on the alleged attempt to steal Georgia’s election, the climax of the House January 6 committee and a new trial of pro-Trump Oath Keepers extremists underscore the breadth of attempts to secure accountability over one of the darkest days in modern American history. These new signs of a net possibly closing around Trump and his allies come a month after voters sent a signal of disapproval with his obsession over the 2020 election by repudiating many midterm candidates in swing states who bought his claims of voter fraud.
But each sign that once slow burning efforts to work through the trauma of the post-election period are heating up brings a parallel warning that the future threat to truth and democracy remains acute. Georgia Rep. Marjorie Taylor Greene, for instance – a key force in the incoming GOP House majority that is likely to try to shut down or obstruct investigations into Trump – is embroiled in yet another controversy over the insurrection.
The Georgia Republican said that if she had her way, the mob that smashed into the Capitol would have been armed. She then rebuffed White House condemnations of her comments by insisting she was joking. This came days after the ex-president stepped up his voter fraud falsehoods by demanding the termination of the Constitution in a sign of how his potential second term might unfold if he wins the 2024 election and returns to the White House.
It is remarkable how tight a hold Trump’s unprecedented attempt to overturn a presidential election still has on Washington politics – even if many Americans are more concerned with feeding their families and paying rent amid raging inflation. And Trump’s campaign of lies is having a damaging impact. Even after Republicans won the House last month, a new CNN/SSRS poll published Monday found that only 34% of Republican-aligned adults are even somewhat confident that elections reflect the will of the people – down from 43% in October.
The ex-president has not yet been charged in either probe and there is so far no indication that he will be. But the sense that Trump is approaching a moment of maximum legal peril is being driven both by signs of an increasingly aggressive investigation by special counsel Jack Smith and the realities of a calendar that offers limited time for any potential prosecutions before the 2024 campaign is in full swing. Trump’s already questionable hopes of winning a national election, meanwhile, could absorb new blows with the unveiling of the January 6 committee’s final report next week and its possible criminal referrals to the Department of Justice.
CNN reported Sunday that Smith is speeding ahead on twin probes into Trump’s role in an effort to disrupt the peaceful transfer of power in 2020 and his apparently haphazard storage of classified documents at his Florida residence and resort. It emerged Monday that Smith’s team subpoenaed Georgia’s Republican Secretary of State Brad Raffensperger, who was on the other end of the then-president’s phone call designed to convince him to “find” sufficient votes to overturn Joe Biden’s win in the Peach State in 2020. Smith has also issued a flurry of grand jury subpoenas since Thanksgiving, including to ex-Trump adviser Stephen Miller and two former White legal counsels.
Ryan Goodman, a professor of law at NYU, interpreted the subpoena sent to Raffensperger as another sign of Smith picking up momentum.
“This thing is ramping up very steadily and at great pace compared to what was happening before,” Goodman told CNN’s Erin Burnett on Monday.
“It’s been over 700 days since the Washington Post published the full hour audio … of that highly incriminating phone call – 700 days for the DOJ to finally get around to subpoena him. When does it happen? Under Jack Smith.”
Goodman also suggested that Trump’s legal team was guilty of wishful thinking if they believed that Smith’s appointment after a period spent abroad meant he was less likely to be influenced by the politicized aftermath of the January 6 attack and that a fresh mind would lean against indictments.
Preet Bharara, a former US attorney for the Southern District of New York, said on NBC’s “Meet the Press” Sunday that Smith’s appointment and his assembling of a high-powered team of experienced prosecutors represented bad news for Trump.
“I don’t think they would’ve left their former positions, both in government and private practice, unless there was a serious possibility that the Justice Department was on a path to charge. And I think it’ll happen in a month,” he said.
Of the two investigations, legal experts say the one regarding classified documents may move ahead the fastest after several failed attempts by Trump in court to delay it. A judge on Monday formally dismissed Trump’s case challenging the Mar-a-Lago evidence collection and in which she had appointed a special master. That gives the Justice Department full access to tens of thousands of records and other items found among documents marked as classified in Trump’s beach club and private office.
Trump is being investigated over possible violations of the Espionage Act and obstruction of justice. The ex-president claims the FBI search of his property at Mar-a-Lago in August is an example of political persecution designed to stop him winning the White House again and maintains that he is entitled to the documents despite the fact that presidents are supposed to send such material to the National Archives and Records Administration when they leave office.
Attorney General Merrick Garland has vowed that no one is above the law and that investigations will go where the evidence leads. But the reality of the legal process means that any trials would take considerable time to prepare and conduct. The prospect of a prosecution of a former president and current presidential candidate is so politically explosive that it would be optimal for any proceedings to take place well before the climax of the 2024 White House race.
“We’re now coming up against a timeframe in which it is a challenge to finish either case, if it is brought, to finish it before the election,” said CNN legal analyst Jennifer Rodgers on “Newsroom” on Monday.
“So, I think they will bring a case on the documents side, if they can, as soon as they can,” Rodgers said, adding that any case on January 6 would probably take more time.
If a moment of truth is approaching for Trump, the same can be said of Garland and the DOJ. Any decision to charge the former president in either case is bound to trigger a furious political chain reaction. Given that the ex-president’s movement has already shown it sees violence as a legitimate tool to express a political grievance, things could get especially dangerous.
While Smith is following legal procedures, the political context makes it even more incumbent on the DOJ to demonstrate to Americans that it had no choice, for instance, to mount an unprecedented search at an ex-president’s home.
Trump has already tried to use claims that justice is being weaponized against him as rocket fuel for his 2024 presidential bid. And while the law, and not politics, is Garland’s stated business, any potential prosecution of Trump must balance the national interest and the precedent that would be set if a commander in chief were to get away with attempting to overthrow an election.
The former president’s conduct is sure to face more withering scrutiny with the final report of the House January 6 committee, which wants to make its case for posterity before it is likely expunged by the incoming House GOP majority next year.
The committee has created a damning pattern of Trump’s conduct, and has repeatedly warned that he poses a clear and present danger to democracy.
Given its tone and direction, it would be something of a surprise if the panel did not recommend the House refer Trump, among other aides, to the Justice Department for criminal prosecution when it wraps up. Such a step would be merely symbolic, however, as the committee has no power to level charges itself. And the DOJ is not compelled to act on any recommendations. Its own investigations would have to resolve the question of whether professional prosecutors agreed with the conclusions of Congress acting in its constitutional oversight role.
One consideration to bear in mind is that the committee’s highly choreographed televised hearings did not include any cross examination of witnesses, so it’s hard to tell how some of the most incriminating testimony about Trump’s behavior would hold up under the far higher evidentiary standard required in a court of law. Still, the report – and transcripts of its depositions expected to be sent to the DOJ – could be useful in fleshing out any criminal case by the special counsel, and in preparing the public for the possibility of any move by Smith to charge Trump.
That’s yet another reason why the turn of the year and the early months of 2023 are beginning to look like a moment of reckoning for both Trump and those who are investigating him.
