Will Trump be impeached? What we know from Jack Smith’s investigation

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The January 6 committee is over, but the Donald Trump investigations are not.

Trump is currently in more danger of impeachment than at any time since he entered politics. A newly appointed special counsel is overseeing not one, but two, cases against him that have been ongoing for months. The first revolves around Trump’s efforts to overturn Joe Bidens election victory, and the second, Trump’s handling of classified information. Separately, state investigations into his election conduct and his business practices continue, and Trump has lost sitting presidents’ immunity from prosecution (according to Justice Department policy). And a federal judge said Trump’s effort to steal the election amounted to a felony violation.

Now, if an indictment happens, it’s not the end of the story far from it. A trial or trials will follow, as will many legal challenges from Trumps team (some perhaps before sympathetic judges). Trump is unlikely to be stopped from continuing his 2024 presidential run except by voters, but despite talk of his recent political woes, he continues to lead in every poll of a multi-candidate GOP field. There may be more twists and turns ahead.

For now, however, all eyes are on new special counsel Jack Smith.

Smith, a career DOJ prosecutor who stepped down from the Hague prosecuting war crimes in Kosovo, has taken over two investigations that have been running for months as the two probes make for some stark contrasts.

The investigation into Trump’s attempt to stay in power seems crucial, but the strength of the legal case, and the personal evidence against him, is unclear.

Meanwhile, the investigation into his handling of classified documents seems legally clear with strong evidence behind it but there are reported tensions among investigators about whether the crime is serious enough to warrant charges.

So, will the special counsel try to indict the president on the important but perhaps more difficult case, or the easier but less monumental case? Or both?

The state of the investigation into Trump’s attempt to steal the 2020 election

The Justice Department’s larger investigation into the January 6 attacks has been ongoing since they happened, focusing first on the people who actually stormed the Capitol. At first, there was no real consensus in the political world about whether Trump had actually committed crimes in his web of lies about the election. So the investigation of him does not seem to have started immediately.

We now know that a team of prosecutors began more intensively scrutinizing Trump and his associates in the fall of 2021. About a year ago, this team was given the green light by the Justice Department to take of the case up to Trump, if the evidence leads them there, according to a recent CNN article.

The investigation proceeded quietly at first. In January 2022, the Washington Post reported that so far the department did not appear to be directly investigating Trump. But just a week and a half after that article, Deputy Attorney General Lisa Monaco confirmed an investigation into one aspect of Trumps scheme: voter fraud. This is an effort by Trump’s allies to name Trump supporters as electors in key swing states that Biden won, and to submit their purported electoral votes to Congress and Vice President Mike Pence and effectively i -dispute the actual votes cast by voters.

Our prosecutors are looking into those, and I can say nothing more about ongoing investigations, Monaco said.

By May, the investigation had subpoenaed several close Trump aides for documents and specifically sought information about lawyers who tried to help him overturn the election. In June, Jeffrey Clark’s home was the official Trump tried to manage the DOJ, so that he could involve the Department in declaring the election results fraudulent was searched by federal agents. The DOJ’s inspector general, Michael Horowitz, was involved in the investigation of Clark, as he was a DOJ employee at the time. Rep. Scott Perry (R-PA), who contacted Trump with Clark, is also a key subject of this investigation.

In late July, the Washington Post reported that prosecutors were asking hours of detailed questions about Trump’s actions in particular, on topics such as the extent of his involvement in the fake elector push and his efforts to coerce Pence to throw away the state’s electoral votes. Then in September, investigators issued at least 40 subpoenas in one week, this time focusing more on Trump’s political and fundraising operations. More recently, new subpoenas have gone out to state officials that Trump has tried to pressure.

A growing number of Trump aides have come forward to testify before one of several active Washington, DC grand juries in recent months. The former president filed a secret lawsuit to try and block the testimony of aides such as former White House counsels’ office attorneys Pat Cipollone and Patrick Philbin, citing privilege concerns, but lost him in that suit, and they testified last month.

The investigation certainly seems very broad and serious at this point. But, importantly, we still lack visibility on some important questions.

First, how strong is the evidence against Trump personally? Did they overturn members of his inner circle who could testify that he did or did not intentionally engage in corrupt activity? Can he get away with the charges by claiming (some of) his lawyers advised him that everything he is doing is legally permissible?

Second, what does the DOJ think about the legal issues at the heart of the case? The House committee argued on January 6 that Trump violated four laws in his attempt to stay in power: obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and aiding an insurrection. . And a federal judge, David Carter, ruled a few months ago that evidence suggests Trump committed some of these crimes.

However, even though the DOJ investigators are clearly taking their investigation seriously, we don’t really know if they agree with Judge Carters analysis of the law, or if they are even quite sure what they think about it. One of Trump’s defense arguments is likely that he was engaging in politicking and political speech, not planning a criminal conspiracy. If he is indicted, that argument will surely make it to the Supreme Court at some point.

This is all relatively new territory and difficult to teach in a case like this. The topic is very important, but since Trump’s actions have not yet been taken, there is less of a roadmap on what the special counsel’s path forward should be.

The state of investigation of classified documents

The case of classified documents, on the other hand, seems simpler from both a legal and evidentiary perspective but it has its own potential problems.

When the FBI raided Mar-a-Lago in search of classified documents last August, the political world was abuzz with speculation about what might have justified such an extraordinary action, and what the Trump. Does he sell classified material to the highest bidder? Is he trying to blackmail the deep state? These theories were never supported by evidence, but a report by the Washington Post that agents were looking for nuclear documents suggested that it was indeed a very big deal.

But recent investigative reports suggest that DOJ prosecutors and FBI agents working on it don’t fully agree about the strength of the case.

According to a Washington Post report in December, the FBI initially wasn’t sure it wanted to take the case. The National Archives asked them to get involved because they found classified material in boxes that Trump later returned to them, and they thought more material was missing. Although Trump appeared to defy a grand jury subpoena to turn over the documents, some FBI agents working on the case weren’t certain they had enough probable cause for a search, according to the Post.

The search took place in August, and prosecutors claim to have found dozens of classified documents, but exactly what they found remains a mystery. The Post reported that some of the documents contained highly sensitive intelligence about Iran and China, including a description of Iran’s missile programs. The government has expressed concern that the information could harm human intelligence resources. But it’s hard to verify those claims, because, well, the information is classified.

Meanwhile, the DOJ-FBI split is said to be continuing. Bloomberg News reported in October that although some DOJ prosecutors thought there was enough evidence to charge Trump with obstruction of justice because he objected to the subpoena, some internal critics, including to the FBI, is asking why Trump would be indicted if Hillary Clinton wasn’t on him. own investigation of classified information. (Clinton has some classified information in email chains sent to her personal email account she used for work; Trump has paper documents in boxes at Mar-a-Lago.)

Furthermore, another Washington Post story suggests that more ominous and speculative theories about Trump’s motives in keeping classified documents are unfounded, in the eyes of investigators. They believe, instead, that his motive was mainly his ego and a desire to hold onto the materials as trophies or mementos. That doesn’t absolve him of violating the classified information law, but it’s certainly less of a clear threat to national security than, say, trying to sell documents.

So there was clearly some tension among the reporters’ sources about whether Trumps crime here was serious enough to warrant an indictment (when Clinton hadn’t been indicted), with prosecutors preferring DOJ is a more aggressive push and FBI agents are more questionable.

Special counsel Smith will have to adjust his own views on all of this, as well as the 2020 investigation. And even any charging recommendations Smith makes will go to Attorney General Merrick Garland for consideration. approval, his opinion will carry a lot of weight in determining whether Trump ends up being impeached next year.

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