WASHINGTON — Attorney General Merrick Garland is rapidly approaching a choice likely to shape American politics and the boundaries of law enforcement for decades: whether Donald Trump will be the first former U.S. president charged with a crime.
Garland has nothing but hard choices. The nation is split, a bare 47% to 43% plurality backing criminal charges for mishandling classified documents, according to an Aug. 29-Sept. 1 Marist poll. Trump, who is mulling another run for the presidency in 2024, is already openly raising the possibility of dark consequences in the event of an indictment.
Asked last week by conservative radio host Hugh Hewitt whether he would be indicted, Trump said, “If it happened, I think you’d have problems in this country the likes of which perhaps we’ve never seen before.”
The Justice Department likely already has the evidence that would support indicting Trump for obstructing a federal grand jury investigation into his handling of classified documents, current and former officials said. The probe into whether he compromised sensitive national secrets is also moving swiftly, potentially setting up a prosecution decision after the Nov. 8 midterm elections. But a sprawling investigation into Trump’s efforts to overturn the 2020 election likely will take a lot longer.
Any decision by Garland, 69, a former federal appeals court judge known for his by-the-book approach, is sure to stoke political passions in the coming presidential race and set a precedent for whether criminal law extends to presidents. Public confidence in the U.S. justice system is at stake. The prospect of violence looms.
The Justice Department declined to comment.
“We don’t want to look like a banana republic, where, when people are out of office, they’re prosecuted by their successors,” said former Trump Attorney General William Barr.
Conversely, since the Justice Department already has decided a president can’t be charged in office, it raises the question of whether presidents effectively would be placed above the law if they committed criminal acts out of office and weren’t prosecuted.
“You can’t have a situation where someone who has been a president is immune,” said Jamie Gorelick, former deputy attorney general under Bill Clinton.
Here are Garland’s options: