A Trump Indictment Requires the DOJ to Follow These Steps

While the House Jan. 6 committee’s decision to refer criminal charges against former President Donald Trump to the Department of Justice is only a recommendation, it focuses attention on whether the department will bring an indictment against the former president.

In making this decision, which is unprecedented in our nation’s history, US Attorney General Merrick Garland and the DOJ’s prosecutors must weigh several factors.

Indictment Requirements

First, the standards for seeking an indictment are strict.

The DOJ’s manual for attorneys instructs that as a threshold matter a prosecutor should only “commence or recommend” prosecution if they believe a “person’s conduct constitutes a federal offense.” In addition, the “admissible evidence” should “be sufficient to obtain and sustain a conviction.”

Determining what is “admissible evidence” is critical, as there is a very high bar. Not all evidence prosecutors gather can be used in court.

Prosecutors must scrutinize each major piece to determine if it will be permitted into evidence during trial. No matter how persuasive some fact might be, if it can’t be presented to the jury, then prosecutors must eliminate it from their calculations.

Prosecutors also must weigh the sufficiency of the admissible evidence, evaluating whether it is “probably” enough to persuade a jury. Toward this end, they conduct a kind of thought experiment, gauging how strong of a case they have and how probable victory would be.

This intellectual process is difficult and fraught with uncertainty. The goal is the construction of a case that can reasonably be expected to withstand the rigors of a criminal trial.

Following these rules, prosecutors normally seek indictment only when the likelihood of winning is high. This is how the DOJ maintains its impressive track record of convictions.

For example, the a DOJ report indicates that in all federal districts in 2021, the department obtained 42,302 guilty verdicts in criminal cases compared to only 128 not-guilty verdicts. Most guilty verdicts result from pleas.

Indicting a Former President

Former presidents enjoy no special privileges in the criminal process. The US Court of Appeals for the Eleventh Circuit reaffirmed that principle on Dec. 1 when it rejected Trump’s attempted interference with the government’s review of evidence from a duly authorized search at Trump’s Mar-a-Lago estate in Florida.

“We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant,” the court said. “Nor can we write a rule that allows only former presidents to do so.”

Prosecutors will apply the same standards to assess whether or not to indict Trump that they would for anyone else, as Garland himself has stated.

The DOJ’s standards may be difficult to satisfy when applied to Trump.

Because Trump tended to operate elusively–handing off responsibilities to subordinates, dropping hints rather than giving commands, avoiding confrontation where possible, eschewing emails and other writings–a portion of the Jan. 6 committee’s disclosures may not be admissible at trial.

It seems likely that even if a command structure for the Jan. 6 riot at the Capitol can be proven, Trump himself was not a part of it. Further, he is not known to have had communications with insurrectionists.

If these conclusions are borne out by the facts, prosecutors will have difficulty attempting to introduce at trial insurrectionists’ statements that they were acting at Trump’s behest or out of loyalty to him–statements that have received great play in the media.

Trump’s Defenses

In addition, Trump may be able to avail himself of several unusual defenses, which the DOJ will have to consider in any charging decision.

One is the First Amendment, which Trump can argue protects his speech to the crowd on the day of the riot and his text messages before and during the event.

Another possible defense is that Trump’s actions leading up to Jan. 6, such as his attempts to persuade Vice President Mike Pence to reject certified electoral votes for Joe Biden, were exercises of his constitutional prerogatives as chief executive.

Both claims are unlikely to succeed and may cast a shadow over the prosecutors’ deliberations.

In the end, one factor notably absent from the DOJ’s manual for attorneys may loom large for Garland: the impact of a Trump prosecution (or the failure to prosecute him) on the nation and its political and social fabric.

This is not a legal call, but one that would have to be made at the highest levels of the executive branch, much like the 1974 decision to pardon President Richard Nixon.

As these considerations show, the decision now before Garland may be one of the most difficult that an attorney general has ever been asked to make.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Write for Us: Author Guidelines

Author Information

Kevin J. O’Brien is a partner at Ford O’Brien Landy. A former assistant US attorney, he specializes in white-collar criminal defense, commercial and securities litigation on behalf of plaintiffs and defendants, regulatory enforcement cases, and arbitrations.