Here’s a New Year’s prediction: Donald Trump will be charged with crimes in 2023.
On the one hand, it’s unremarkable to prophesy that a man who’s facing several probes by federal and state prosecutors for conduct that looks pretty unlawful will be charged with crimes.
On the other hand, it’s Trump, whose name hasn’t been synonymous with accountability.
There’s reason to think that will change.
The feds’ search and seizure of classified documents at his Mar-a-Lago estate in Florida this summer felt like a watershed moment.
One might see this prediction as fueled by the recent, dramatic finale of the historic House Jan. 6 committee and the several criminal referrals it made for Trump and others.
But unfortunately for Trump, that’s only one piece of the puzzle. If anything, the feds’ search and seizure of classified documents at his Mar-a-Lago estate in Florida last summer felt like a watershed moment: federal law enforcement action against a former president who had seemingly lived a consequence-free life and might have continued to do so. Even an incremental step toward potential prosecution from the branch of government that can actually bring charges seems more significant than the legislative branch’s asserting Trump’s guilt by way of criminal referrals (both things, of course, can be and are significant).
Plus, the Mar-a-Lago case appears to be more straightforward than the sordid legal maze of Jan. 6 and its tentacles. As former federal prosecutors said in a November memo analyzing the documents case, published at Just Security, “there is a strong basis to charge Trump.” With his special master detour officially crushed — by Trump-appointed judges, no less — he looks a step closer to charges related to his apparent mishandling of classified documents and obstruction.
And that’s just Mar-a-Lago.
To be clear, the notion that Jan. 6 charges are a legal maze doesn’t mean Trump won’t be charged in that investigation, too, which is overseen by special counsel Jack Smith. Attorney General Merrick Garland appointed Smith after Trump announced his 2024 bid. (Smith is also overseeing the Justice Department's probe into the Mar-a-Lago classified documents scandal.)
The Jan. 6 committee’s evidence shows the potential for charges of insurrection against the former president — let that sink in — as well as conspiracy and obstruction related to the attack on the Capitol and American democracy itself. Indeed, the committee noted that the Justice Department may have evidence, not to mention resources, that Congress doesn’t. (It's worth noting the possibility that the Justice Department could have exculpatory evidence in Trump’s favor that isn’t public, however generous that scenario seems.)
And those are just some of the charges Trump could face this year.
The former president should be worried about the states, too. Not that there’s a double jeopardy issue with charges’ being filed by both federal and state prosecutors — even, oddly enough, for the same crime, as the Supreme Court recently affirmed. (Trump may want to brush up on double jeopardy, a concept he apparently has some trouble grasping, as my MSNBC colleague Steve Benen has pointed out.)
And while the investigations are separate, the explosive Jan. 6 committee findings could boost Fulton County District Attorney Fani Willis’ investigation in Georgia. As Jennifer Rubin wrote in The Washington Post in December, the facts laid out by the committee fit Georgia charges “quite well.” Citing a Brookings Institution report, she recalled the potential pathways to prosecute Trump in the Peach State: "interference with primaries and elections; intentional interference with performance of election duties; solicitation to commit election fraud; and conspiracy to commit election fraud."
So with all of that looming, is it really possible for Trump not to be charged anywhere? Sure.
She also observed that Willis has put additional witnesses in front of the grand jury who didn’t appear before the Jan. 6 committee, prompting the conclusion that she “could well be on her way to an indictment of Trump in early 2023.”
And, of course, it would be a mistake to sleep on New York, where the Trump Organization has already been convicted.
So with all of that looming, is it really possible for Trump not to be charged anywhere? Sure.
But that seems unlikely at this point. And, partly because of the challenges of accusing a potential president of crimes, any prosecutor bringing charges will want to do so by next year. That wouldn’t eliminate the novel issues of charging a 2024 presidential candidate even in 2023, which would prompt a series of unprecedented legal questions, as Trump is wont to do. What seems clear, though, is that the former president is poised for a bad year.
