The Washington PostDemocracy Dies in Darkness

Opinion Trump has never been in so much peril. Nor has the GOP.

Fencing outside the FBI's headquarters in D.C. on Aug. 16. (Matt McClain/The Washington Post)

It is hard to keep track of all the criminal statutes that might apply to defeated former president Donald Trump regarding actions leading up to and after the 2020 election.

The media have lately focused on three statutes that Trump might have violated in retaining highly classified documents, as cited in the FBI search warrant for his Mar-a-Lago home: the Espionage Act; Section 1519 of the U.S. Code, relating to obstruction of an investigation; and Section 2071, relating to theft of government documents.

These potential violations could be on top of the potential charges regarding his phony elector scheme; his effort to pressure former vice president Mike Pence to illegally reject electoral votes; and his invitation and incitement of the crowd on Jan. 6, 2021. As to incitement, University of Chicago law professor emeritus Albert W. Alschuler, writing for Just Security, argues that Trump’s failure to act once the insurrection was underway and his 2:24 p.m. tweet further riling up the crowd against Pence might be powerful evidence against Trump on the charge of “aiding and abetting” the insurrection, since Trump had a legal duty to intervene.

And then, of course, there are the Georgia state criminal statutes that Trump might have violated in his effort to pressure state officials in Georgia to “find” just enough votes to flip the state’s election. Fani T. Willis, the district attorney for Fulton County, Ga., is moving full speed ahead with her investigation, with an eye on charges that could include conspiracy to commit voting fraud, interference with performance of an official’s duties and violation of Georgia’s racketeering law.

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Considering the parade of witnesses appearing before the FBI, the federal grand jury and the grand jury in Georgia, prosecutors are no doubt collecting a mound of evidence against the former president. And the more witnesses who talk, the higher the risk that someone strikes a deal to incriminate Trump. The identification of Rudy Giuliani as a target in the Georgia investigation raises the potential that even Trump’s attorney might turn on him to avoid prosecution.

Altogether, it seems Trump is in more legal peril than ever before. His misconceptions about the criminal justice system and his supporters’ wishful thinking do not diminish the danger of indictment.

Trump’s lame overtures to Attorney General Merrick Garland to “reduce the heat” of the political fallout from the Mar-a-Lago search — while simultaneously insinuating that violence might occur if the Justice Department keeps pursuing him — is as disingenuous as it is utterly irrelevant to Garland. The Justice Department’s prosecutors and investigators certainly don’t care if Republicans are still enthralled with Trump. They will go after anyone who engages in acts of violence, as Garland made clear in his remarks last week in which he demanded that people stop impugning and threatening the FBI.

Likewise, while Trump seems convinced that announcing his presidential bid for 2024 would make it harder for prosecutors to indict him, that’s another Trumpian delusion. Garland has reiterated he will pursue the facts and the law regardless of where they lead. And he added credibility to that statement with his nervy decision to execute the search warrant at Mar-a-Lago. The bottom line: Cult support for Trump is not going to buy him any relief from legal woes.

So if Trump is in deep legal trouble, what can we say about his party? Well, think of this as a “shooting someone in the middle of Fifth Avenue” moment. Republicans are apparently willing to stick with Trump even if he’s caught red-handed in committing crimes. As Never Trumper Charlie Sykes writes for the Bulwark:

On a segment of Deadline White House yesterday, guest host John Heilemann asked Punchbowl’s Jake Sherman and me a provocative question: Could the GOP actually nominate someone who was under indictment for espionage?
We were asked only to give a one-word answer. We both said: yes.

That’s the road the GOP seems ready to go down. The party is putting all of its eggs in the basket of a guy who might be indicted under a variety of legal theories in state and federal court. Sure, it might dawn on some Republicans that this might not be a wise strategy. But even if the party shifts to another contender, Trump will almost certainly set out to destroy that candidate’s chances.

You can find plenty of Republican hacks on TV insisting that the search warrant at Mar-a-Lago is a political “win” for Trump. But what is he winning? Certainly not protection from prosecution. And this sort of “win” for Trump creates a potentially debilitating problem for the party, which will be pressed into defending his conduct. One wonders what Republicans really think about the possibility of having to run down-ballot from someone who could be under indictment.

The more Trump tightens his grip on the party, the greater the likelihood that the GOP will nominate someone who is at real risk of criminal prosecution. The party’s Trump worship might soothe the raging narcissist, but it also might ensure the GOP puts forward the most toxic presidential candidate in history.

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