Donald Trump’s Chances of Impeachment in the New Year

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Despite a bombshell FBI raid last summer and two ongoing Department of Justice (DOJ) investigations, former President Donald Trump made it through 2022 without formal indictment.

However, last week’s criminal referrals could break Trump’s lucky streak in the new year.

In its last public hearing, the House committee investigating the disturbance in the Capitol on January 6 announced that it is recommending that the DOJ pursue four criminal cases against Trump, who is officially running for president in 2024.

While an indictment will ultimately be left to the DOJ’s discretion, the final report released by the committee could give prosecutors more corroborating evidence they may need to build a case against Trump.

Attorney General Merrick Garland (left) listens to a briefing at the Department of Justice in Washington, DC, on July 20, 2022. Former President Donald Trump (right) speaks at an event at his Mar-a-Lago home in November 15, 2022, in Palm Beach, Florida. In its last public hearing, the House committee investigating the disturbance in the Capitol on January 6 announced that it recommended that the Department of Justice pursue four criminal charges against Trump, who is officially running for the presidency in 2024. Oliver Contreras/Joe Raedle/AFP

Former federal prosecutor and state attorney general-elect Michael McAuliffe told Newsweek that the chances that federal, or even state, charges will be brought against Trump as investigations move forward in 2023 are ” especially high.”

He said that while the lawmakers’ referrals were a symbolic step that would not slow down the decisions of Special Counsel Jack Smith, who is overseeing the two DOJ investigations into Trump, the House report would likely give prosecutors access to testimony that can lead to greater cooperation by witnesses, which can lead to greater evidence for criminal cases.

“DOJ and state investigators now need the opportunity to digest and review documentation for hundreds of interviews from individuals who could be witnesses in potential criminal cases against Trump,” said McAuliffe.

The DOJ is investigating Trump’s role in the January 6, 2021 riot at the US Capitol as well as confidential records found at his Mar-a-Lago home. At the same time, the Fulton County District Attorney’s Office is investigating Trump’s efforts to subvert the results of the 2020 election in Georgia.

By targeting some of the witnesses who participated in the House committee’s investigation, prosecutors will try to “flip” them for their cooperation, McAuliffe said.

“A target who cooperates has to acknowledge responsibility for the underlying crimes and provide information about his own activities and the actions of others, including Trump,” he said. “That’s how criminal cases are built on these kinds of things.”

But while McAuliffe thinks the likelihood of a Trump indictment is increasing, former federal prosecutor Neama Rahmani believes the former president is more likely to be impeached in 2023.

Rahmani said that while Smith’s appointment as special counsel raises the possibility of a criminal case, “Time is the criminal defendant’s friend.”

Nearly two years after rioters stormed the Capitol, the referrals will do little to move the needle on something many Americans have already come to their own conclusions, according to Rahmani.

“There is already a perception among some Americans that Trump will be prosecuted for political and not legal reasons, and a partisan congressional referral plays into this perception,” he told Newsweek. “[Attorney General Merrick] Garland would have to approve any prosecution, and he may be afraid he’s opening Pandora’s Box by prosecuting Trump.”

Rahmani said that given that Garland seems reluctant to charge Trump for the documents found at Mar-a-Lago in August, which are “the most likely and recent crime,” it’s more likely that the attorney general will follow Trump for January 6, 2021.

“What leads anyone to believe that he has the stomach for a trial related to Trump’s role in the disturbances at the Capitol or his tax returns,” Rahmani said.

But McAuliffe said Garland may have stopped short of a more “straightforward” allegation to avoid influencing other investigations by his agency, not because he lacked evidence to support formal criminal charges. Because an indictment in one criminal matter can limit investigative steps in another, McAuliffe said, “the timing of charges is a strategic consideration.”

While a Trump indictment is “possible” in the new year, Carl Tobias, a constitutional law professor at the University of Richmond, told Newsweek that it’s hard to imagine how 2023 will play out because much of the information will be important to the DOJ’s the decision is not public.

He said prosecutors will also need to scrutinize the information to make sure it’s clear whether Trump violated federal laws so the DOJ can follow the guidelines under which Garland promised to run his department.

“Garland has repeatedly said that politics will not be a factor in an indictment and that the DOJ will rely on the law and the facts to support any indictment decision,” Tobias said.

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