Not necessarily, although that’s the impression the Washington Post wants to leave with this blockbuster report last night. The Department of Justice has apparently been investigating Donald Trump himself as part of their post-2020 election probe. The question is whether Trump has become a target of the probe, or just that his actions may be a necessary adjunct to the investigation of Trump’s inner-circle figures, especially in the “fake electors” scheme that has drawn the most interest at the DoJ.
Can we count the many ways in which this could go sideways — if this is accurate?
The Justice Department is investigating President Donald Trump’s actions as part of its criminal probe of efforts to overturn the 2020 election results, according to four people familiar with the matter.
Prosecutors who are questioning witnesses before a grand jury — including two top aides to Vice President Mike Pence — have asked in recent days about conversations with Trump, his lawyers, and others in his inner circle who sought to substitute Trump allies for certified electors from some states Joe Biden won, according to two people familiar with the matter. Both spoke on the condition of anonymity to discuss an ongoing investigation.
The prosecutors have asked hours of detailed questions about meetings Trump led in December 2020 and January 2021; his pressure campaign on Pence to overturn the election; and what instructions Trump gave his lawyers and advisers about fake electors and sending electors back to the states, the people said. Some of the questions focused directly on the extent of Trump’s involvement in the fake-elector effort led by his outside lawyers, including John Eastman and Rudy Giuliani, these people said.
In addition, Justice Department investigators in April received phone records of key officials and aides in the Trump administration, including his former chief of staff, Mark Meadows, according to two people familiar with the matter. That effort is another indicator of how expansive the Jan. 6 probe had become, well before the high-profile, televised House hearings in June and July on the subject.
Depending on how it’s viewed, this is either an exercise in justice, a vendetta against an electoral opponent, or a massive opportunity for backfire. It might be all three at once, in fact, as well another erosion in norms by an administration that might be well advised to cling to them.
Has one administration ever opened a criminal investigation into a former president — especially one defeated by a current president in an election? Not to my knowledge. The closest corollary that comes to mind is Richard Nixon, but Gerald Ford pardoned him to prevent precisely this outcome — and of course, Ford had been Nixon’s vice president rather than an electoral rival. Even with that aside, the Watergate investigation was mainly a congressional effort, although several members of Nixon’s inner circle ended up doing prison time for their electoral shenanigans. The DoJ was not entirely a sideline observer in Watergate, after all.
That might be what the purpose is here, too — to go after Trump’s inner circle pour encourager les autres. By charging and prosecuting the people around Trump who took the actions that can more easily be proven as criminal conduct, it presumably would disincline others to try such actions in the future. Note that the Post’s report doesn’t actually say that Trump is a target of the probe — the word “target” is curiously absent from the entire article, in fact — but that Trump’s actions are under scrutiny. If the DoJ is targeting the attorneys and advisers around Trump over the fake-electors scheme and an alleged conspiracy to intimidate Mike Pence into calling off the Electoral College count, Trump’s actions and statements would necessarily need to get investigated, but that doesn’t necessarily mean they’re contemplating a Trump prosecution.
As the Post acknowledges, a prosecution against an electoral candidate who’s working through legal advice and not doing much more than making speeches quickly becomes constitutionally tricky:
In trying to understand how and why Trump partisans and lawyers sought to change the outcome of the election, one person familiar with the probe said, investigators also want to understand, at a minimum, what Trump told his lawyers and senior officials to do. Any investigation surrounding the effort to undo the results of the election must navigate complex issues of First Amendment-protected political activity and when or whether a person’s speech could become part of an alleged conspiracy in support of a coup.
That’s a key legal problem, but this creates a political problem for the DoJ and Joe Biden, too. If they come after Trump and can’t make a convincing case, they run the risk of creating a kind of public vindication for Trump that will only make him stronger. If they do indict Trump but can’t convict him, that will add to the perception that the entire exercise was borne of establishment vindictiveness. And even if they do convict Trump, all this does is keep Trump in the center ring of American politics when he otherwise might have wound up being a sideshow — a risk that the one-sided January 6 committee hearings run, too.
These are a couple of the reasons why the American tradition has been to let sleeping presidential dogs lie, no matter how many fleas they may still have. Plus, as Ford concluded in pardoning Nixon, the country has too much work to get trapped for years in the past. Of course, we also have a strong tradition of the rule of law and the principle that no American is above it due to privilege or rank, and those two are in clear conflict at times like these. But assuming that the DoJ really has targeted Trump, they have to ask themselves whether the political blowback and backfire in re-energizing Trump politically is worth the effort to parse out a path through the First Amendment to an indictment that would be difficult at best to sustain.
Finally, Biden has to ask himself whether he really wants to toss aside these norms and sic the DoJ on his predecessor and political rival. Not only does that smack of vindictiveness, but Biden and his family might live to regret that when a Republican-led DoJ turns its full attention to Hunter Biden, Joe’s brothers, the alleged cover-ups within DoJ over Biden Inc, and the kickbacks to The Big Guy. The lesson here should be: choose your new norms carefully.