But he may never have faced an investigation as dangerous as the Mar-a-Lago probe, one centered on the possible mishandling of top-secret documents. The sense of vulnerability has been heightened in recent weeks not only by the Justice Department’s appointment of a special counsel with a reputation for aggressiveness but also by the removal of an independent arbitrator that Trump had requested in the case and by the judges’ outright rejection of his lawyers. arguments. It is impossible to predict how much longer the investigation will take or whether the Justice Department will take the unprecedented step of charging a former president and current candidate. But Trump is no longer protected from prosecution as he was as president, and some legal experts see the Mar-a-Lago investigation as focusing on clearer factual and legal questions than previous investigations he has dealt with. “Unlike many of these past investigations involving these complex financial frauds, where prosecutors have to explain to a jury why the conduct is even a crime, here prosecutors won’t have that difficulty, they won’t have that the challenge of explaining what the crime is about” if charges are eventually brought, said former Justice Department attorney Robert Mintz. An investigative hurdle for the Justice Department was lifted last week when an appeals panel that included two Trump-appointed judges terminated the work of a special master tasked with an independent review of thousands of documents seized during the FBI probe. Mar-a-Lago. The ruling allows prosecutors to use the entire cache of files for their investigation. In a scathing opinion that reached deep into history, the court recognized that a search of a former president’s estate is extraordinary, but not so unusual as to warrant special treatment. The story continues “It’s not often you see cases referencing appeals court decisions that were decided in 1794, in the 1800s,” said David Weinstein, a Florida criminal defense attorney and former federal prosecutor. “These are fundamental principles of law that have existed for a long time. on which they relied.” Of course, investigations are nothing new for Trump, and speculation about his legal risk has been unthinkable in the past. Last year, New York prosecutors indicted Trump’s business, the Trump Organization, and its longtime chief financial officer — but did not charge the former president. In September, New York’s attorney general accused Trump of defrauding his net worth by billions of dollars and defrauding banks — but those allegations were made in a lawsuit, not a criminal case. As president, he was investigated by a previous special counsel, former FBI director Robert Mueller, into whether his successful 2016 campaign colluded with Russia and whether he had tried to obstruct that investigation. Mueller ultimately found insufficient evidence to allege criminal collusion between the campaign and Russia and also cited longstanding Justice Department policy barring indictments against a sitting president. The sticking point of this research involved analysis of constitutional law and the scope of presidential power. But prosecutors in the Mar-a-Lago probe have largely dismissed the importance of Trump’s status as a former president, arguing during a court battle over the special master that the classified files he accessed as commander-in-chief are still not there are belong to him. And the appeals panel in its opinion last week rejected the idea that Trump is entitled to return records seized from his home or have an independent arbitrator go through them, which it said would create a “special exception.” The search for the records had been simmering for months before it surfaced with an Aug. 8 FBI raid in Mar-a-Lago, with agents removing about 100 classified documents. By that point, Justice Department officials say they had developed probable cause to believe crimes related to the retention of national defense information as well as obstruction had been committed. Since then, the investigation has shown signs of accelerating, with the Justice Department presenting evidence to a grand jury and last month granting immunity to a Trump ally to secure his testimony. The investigation is being led by Jack Smith, who previously headed the Justice Department’s public integrity division and most recently served as a war crimes prosecutor in The Hague. Smith is also overseeing key aspects of a separate Justice Department investigation related to efforts by Trump and his allies to overturn the results of the 2020 presidential election. The Fulton County, Georgia, district attorney is separately investigating efforts to overturn the results as well of this state. Attorney General Merrick Garland’s appointment of Smith came three days after Trump announced his candidacy for the White House. The announcement won’t stop the investigation, though it may quicken the pace to avoid clashing with the heart of the 2024 presidential race. His nomination could theoretically imbue the investigation with more significance, said former federal prosecutor Franklin Monsour Jr., since it would no longer be about just one former president. “Now it’s about somebody trying to be president again and trying to have national security stuff again.” But legal experts expect the Justice Department to weigh more than just the strength of the evidence in deciding whether to proceed with a case. There will be questions about how much classified evidence he can present to a jury — and the feasibility of selecting an unbiased jury, given the ubiquity of Trump’s name recognition and the impassioned reactions he evokes on both sides. Prosecuting a former president also risks being seen as political, further polarizing an already divided country, and turning a court into a circus atmosphere. “It basically weighs the principle that no person is above the law against the practical political ramifications that bringing these kinds of charges against a former president, particularly one who is running for president again, will create,” Mintz said. “It’s an extremely difficult decision,” he added.
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