“These developments have come as an unexpected bonanza, allowing Trump to dominate the ‘screen near you.’ If Trump is indicted, the Congressional ‘referral’ to the Justice Department would allow him to linger on the ‘screen’, making the Attorney-General’s position uncomfortable as he is expected to be non-partisan. Also, the long process, including ‘arraignment, pleading, pretrial motions and trial’, could be as ‘big a news story as a presidential election’ and might drag on.”
As the November 2022 mid-term elections are approaching, there is a growing fear in America that the FBI’s search of ‘Mar-a-Lago’ (‘sea to lake’, in Spanish), former President Donald Trump’s residence, on August 8 might be to the Republican Party’s political advantage. The US National Public Radio (NPR) has said that it would result in Trump looming all over the USA like “Thanksgiving’s pumpkins.” This, together with the US House Select Committee’s public hearings to investigate into the violent attack on the Capitol on January 6, 2021, might help Trump keep the “pot boiling.” Along with the New York probe into his tax statements, these developments might “define the ambience” during the November elections when 435 seats in the House and 35 seats in the Senate will go for polling. Currently, the Democrats have only a narrow majority — 220-211 — even in the House of Representatives. In the Senate, it is 50-50. Democrats have only 48, supported by two independents against 50 of the Republicans. This wafer-thin majority is with the help of Democrat Chairman Vice-President Kamala Harris. Admittedly, Trump was legally culpable in carting away to his Florida home ‘Mar-a-Lago’ many confidential documents, including those related to some of the most secret intelligence operations. However, Trump was an unconventional President. He did not feel the need to follow any settled constitutional procedures or conventions. In a 2018 Twitter post, he had reportedly claimed that he had the right to pardon himself under Article II of the US Constitution. He had seriously thought of issuing pardon to himself and his family after the Capitol Hill riots on January 6, 2021. After the National Archives found that the papers were confidential, his lawyers said that as President, he had the “privilege’ to keep such papers.
Certain other factors have helped Trump to claim “victimhood” and cry “political vendetta.” The August 8 FBI “search’ was unprecedented in US history. This was the first time a former US President’s residence was searched. It was also the first time that the US Justice Department (DOJ), which supervises the FBI, was undertaking such a search in its 152-year history. That helped Trump to say that it was an “assault” which “could only take place in broken Third World countries.” Soon after the “raid”, Republican Party leaders alleged political witch-hunt. They said that the DOJ was being “weaponized” to prevent Trump from running for President in 2024. They warned Biden appointee Attorney-General Merrick B Garland of “payback” if they gained majority in the Congress in the November 2022 elections. “Attorney-General Garland, preserve your documents and clear your calendar,” they said.
Resembling our Opposition-ruled states’ derecognition of the CBI’s investigation in their states, a Florida State Republican legislator, Anthony Sabatini, urged his State Assembly to call an emergency session to legally derecognize the jurisdiction of the DOJ and arrest the FBI agents who were operating in their state.
These incidents have emboldened Trump supporters to wrest leadership of the Republican Party from dissidents and turn him into an election mascot. In February, the Republican National Convention (RNC) had overwhelmingly censured Representatives Liz Cheney of Wyoming and Adam Kinzinger of Illinois for “crossing the line” by joining the US House Select Committee which is conducting public hearings on the January 6 incidents.
On August 16, Liz Cheney was defeated in her Wyoming Republican primary. Trump gleefully said that it was a “wonderful result for America, and a complete rebuke of the Unselect Committee of political Hacks and Thugs.” The NPR said that more than 120 Republicans, who had supported Trump’s statement that he was “cheated” during the 2020 Presidential elections, had won the Republican primaries for different offices and would be contesting for different positions. These developments have come as an unexpected bonanza, allowing Trump to dominate the “screen near you.” If Trump is indicted, the Congressional “referral” to the Justice Department would allow him to linger on the “screen”, making the position of Attorney-General Merrick B Garland uncomfortable as he is expected to be non-partisan under the 1789 Judiciary Act. Also, the long process, including “arraignment, pleading, pretrial motions and trial”, could be as “big a news story as a presidential election” and might drag on like the different stages of the next presidential election. Such publicity might get more sympathy for Republican Party.
Even after all these efforts, there is no guarantee that the DOJ would finally go for Trump’s prosecution. This feeling is based on the fate of former FBI Director Robert Mueller’s enquiry between 2017 and 2019 on the alleged Russian interference in the 2016 presidential elections and why he stopped short of recommending Trump’s prosecution. Mueller had told the House Judiciary Committee on July 24, 2019, that he refrained from indicting President Donald Trump on account of the longstanding Justice Department policy of abiding by the opinion of the agency’s Office of Legal Counsel (OLC) that a sitting President cannot be charged with a federal crime.
Mueller also told the committee that he had found “multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian interference and obstruction investigations.” He added that he had indicted 34 individuals and three Russian businesses on charges ranging from computer hacking to conspiracy and financial crimes. These indictments had resulted in five sentences to prison and seven guilty pleas. Why did the Justice Department Counsel say so? The OLC is reported to have said that “the indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Media reports in 2019 had also added that there were no Supreme Court rulings on this issue. Finally, Mueller had left it to the Congress to take a decision as Trump was in office. Will the Biden administration’s Office of Legal Counsel in the Department of Justice also maintain the same stand since Trump was in office till January 20, 2021? If so, that will be Trump’s final political victory and it might set the stage for the 2024 elections.
(The author is a Former Special Secretary, Cabinet Secretariat, government of India)