Former President Donald Trump speaks at a campaign rally in Youngstown, Ohio., Saturday, Sept. 17, 2022. (AP Photo/Tom E. Puskar)

The question is no longer whether Trump will be indicted but when, for what, and by whom. Whether for violation of the Georgia election laws or many federal crimes, Trump is in the soup.

Last month, Bloomberg reported that Justice Department prosecutors believed they had amassed sufficient evidence to charge the former president with obstruction of justice arising from the Mar-a-Lago documents. However, they had yet to recommend as much to Attorney General Merrick Garland. The New York Times reported that a security camera caught a long-serving Trump staffer moving boxes after the subpoena demanding the return of all classified documents. The Washington Post piled on with the statement that a Trump employee told investigators that documents were moved at Trump’s explicit direction post-subpoena.

On Halloween alone, consider how many spooky investigations were moving forward in Trump World: the seditious conspiracy trial of the Oath Keepers; the criminal trial of Trump’s company in New York for tax evasion; the criminal trial of his close friend Tom Barrack, head of his inaugural committee, for acting illegally as a foreign agent; the civil trial of Trump for having Trump Tower employees attack protestors on Fifth Avenue; the defamation case brought against Trump by E. Jean Carroll, the writer who accuses him of sexual assault; the January 6 Committee’s subpoena for the ex-president to appear before the panel; the House Ways and Means Committee’s subpoena of his tax records (temporarily stayed by Chief Justice John Roberts); not to mention the very aggressive prosecution of voter fraud by the Fulton County attorney in Atlanta. Oh, yes, and Senator Lindsey Graham lost his bid, the next day, to defy a subpoena to appear before the Fulton County prosecutor—a rebuke delivered by the Roberts Court.

“Of all the things Trump is being investigated for around the country, obstruction of justice is a slam dunk, and I think he is going to be indicted,” Frank Figliuzzi, the former FBI assistant director for counterintelligence, told Bloomberg. The white-collar crime scholar Jennifer Taub has noted in the Monthly that someone will indict Trump. (Conviction or a plea deal is, of course, quite another matter.)

The Mar-a-Lago documents are starting to look like the most formidable threat to the 45th president. This conundrum wasn’t even public until a few months ago, unlike the longtime investigations into January 6, which have stewed for more than 20 months. (Trump’s legal jeopardy expands so quickly that the Russian follies of the Robert Mueller–led probe feel like they’re from the Pleistocene Era.)

It’s a major deal if the Justice Department’s team has the goods to recommend indicting Trump. Garland makes the final decision, but he’s an institutionalist, a DOJ veteran, with an innate respect for professional prosecutors. There’s no reason to think he’d balk, unless he thinks the evidence isn’t solid.

A vexing question is where an obstruction of justice indictment in the documents would be filed. The Sixth Amendment guarantees that “the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Obstruction of justice would have been committed in Palm Beach, where Trump husbanded the documents, unless the Justice Department can demonstrate that the obstruction first occurred in Washington when he removed the documents from the White House and then continued in Florida, in which case the trial could take place in either district.

Trump has this going for him: Trying the case in Florida would be dangerous for the government. As we have seen in the case of Trump favoring federal district Judge Aileen Cannon, Florida jurists may well give Trump the benefit of the doubt. His teacher in the dark arts of lawfare, the disgraced lawyer Roy Cohn, used to say, “Fuck the law. Who’s the judge?” Trump has always taken this perverse aphorism of justice to heart.

He might post the same question about juries. If there are any MAGAs on the South Florida jury who escape voir dire, they will have little patience for charges that Trump was in the possession of government documents that even the government will concede he was once allowed to peruse all he wanted. After all, in their eyes, he is the president, the victim of the steal.

Other criminal charges might be brought against “Teflon Don.” Most of these would be federal charges that Garland could file in the District of Columbia, where judges and juries would be much better disposed to the government’s case. Some would be in Fulton County, where Trump pressured Secretary of State Brad Raffensperger to “find” 11,283 votes after the election.

Trump’s legal team is weighing whether to allow federal agents to return to Mar-a-Lago and potentially conduct a supervised search to satisfy the Justice Department’s demands that all sensitive government documents are returned.

It is highly doubtful that such a follow-up search would be fruitful. Additional stolen documents may have already been moved to Trump Tower, Bedminster, or another location. It is inconceivable that even Trump would have left more documents at Mar-a-Lago.

As if all this weren’t enough, federal Judge David Carter in California, in a case involving the attorney John Eastman—the brains behind Trump’s Hail Mary pass to undercut the 2020 election—ruled that four emails had to be turned over to the January 6 Committee, notwithstanding the attorney-client privilege, because they were “sufficiently related to and in furtherance of the obstruction crime.”

In one email, Eastman wrote that in spite of verification (for a Georgia state court filing) on December 1, 2021, he had since been made aware that certain voter fraud statistics were inaccurate. Nevertheless, according to Carter, Trump signed a new verification, stating “under oath that the incorporated, inaccurate numbers are ‘true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief.” Trump knew and believed otherwise. Lying under oath is called perjury.

A Bill Clinton appointee, Carter determined that the “emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy.” Pretty damning.

I think Garland will file multiple indictments against Trump in D.C. The grand jury could charge Trump with several federal crimes, including the following:

  • He could be indicted in Washington for conspiracy to defraud the United States, seditious conspiracy, incitement to insurrection, and obstructing an official proceeding, notably the certification of the 2020 election.
  • He could be indicted in Washington under the Espionage Act for removing documents related to the national defense and mishandling government documents.
  • Or, now we are told that with at least some of the purloined classified documents related to Iran’s missile program and China’s defenses, another section of the Espionage Act, Title 18 U.S. Code § 793(d), comes into play. That law makes criminal the transmittal to unauthorized persons or the retention and failure to deliver on demand by someone lawfully in possession of or entrusted with national defense documents.
  • He could be indicted for wire fraud for obtaining $250 million in contributions to the Save America PAC by making false and fraudulent claims that the election was stolen.

And that’s a long bill of fare for an attorney general; those are just the entrées. Of course, Garland isn’t going to want to be the first AG to prosecute a former president and then blow it. Like a matador, he’ll wait for the right moment to skewer the bull.

James D. Zirin

James D. Zirin, a former federal prosecutor in the Southern District of New York, is the author of Supremely Partisan.