To indict or not to indict, that is the question

Any lawyer who has been paying attention knows that former President Trump has committed federal crimes arising out of his mishandling of the Mar-a-Lago papers, as well as the events of Jan. 6.

I was hoping that our super-cautious attorney general, Merrick Garland, would make a charging decision, but he has instead punted his constitutional responsibility to a “special counsel,” personified by an obscure plodding career prosecutor named Jack Smith, who made his way from Brooklyn to the International Court of Justice in The Hague. Smith will investigate Jan. 6 and the mishandling of the Mar-a-Lago papers.

It would be unproductive to question Garland’s decision, although I doubt it gives him much cover. He could have just as effectively added Smith to the Department of Justice (DOJ) team as add the team to Smith. Smith has promised that he will proceed expeditiously. And, given the political landscape, there is an urgency.

Jack Smith, take notice. This may save you some time. The internet platform “Just Security” has developed a “Mar-a-Lago Prosecution Memo,” authored by several people who “have decades of experience as federal prosecutors and defense lawyers, as well as other legal expertise.”

They analyze the publicly available evidence on the Mar-a-Lago piece of the investigation and conclude that “a powerful case exists” for charging Trump under six “federal criminal statutes.”

True, the way forward to a successful prosecution may seem fraught, but Smith should proceed boldly if the proof is there.

There is an unwritten policy at DOJ that says you don’t indict a candidate for office within 60 days of an election, and Smith may want to wait until the Dec. 6 Georgia runoff.

The larger question is whether DOJ will indict Trump at all. We have never in our history indicted a former president, and Americans don’t like to prosecute our former political leaders lest we seem like a banana republic.

The New York Times just published an analysis by another former federal prosecutor, Ankush Khardori, who posits that the Justice Department could conclude that the evidence is not strong enough to win a conviction. To support his speculation, Khardori cites another article he has written where he says without support that the Justice Department may conclude that Trump took a bunch of scattered bits of classified information that are practically useless to third parties. Of course, whether the purloined documents were “useless to other parties,” or stolen to sell or stolen for ego and to keep as a trophy, as has been reported, is irrelevant. The law when it comes to government documents is a flat out “thou shalt not steal.”

Khardori then goes on to depict a parade of worst-case scenarios, assuming DOJ decides to indict, including, the political consideration that an indictment may help Trump galvanize his base, and propel him into the Republican nomination and the presidency. If Trump or another Republican is elected in 2024, the new attorney general may discontinue the prosecution.

Then, there is the pardon power. If Trump is president in 2025, he may even pardon himself. Constitutional scholars do not think he can legally do this, but if he does it, what’s to stop him?

In every criminal case, the prosecutor must roll the dice, and there are scenarios where he might lose. But, as Khardori acknowledges, federal prosecutors “win about 85 percent of cases that go to trial,” although they “tend to fare worse in particularly hard cases, such as the recent failed prosecution of close Trump associate Thomas Barrack.

Under Justice Department guidelines, prosecutors are supposed to bring cases only when they believe “that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact,” with the qualification of whether the particular prosecution serves a “substantial federal interest” based on “all relevant considerations.”

While Smith will make the charging decisions, Garland under the independent counsel statute will have the ultimate call. A special counsel is institutional window dressing. Smith’s appointment does not erase the appearance that prosecuting Trump is a political witch hunt launched by Garland’s boss, President Biden, who wants to get rid of a political opponent. It was Biden who appointed Garland; it was Garland who appointed Smith; and it is Garland who makes the final call.

The key thing is to avoid delay; and, as noted, both Garland and Smith have promised that Smith will proceed expeditiously. Delay is in neither the prosecutorial nor the public interest. There is a momentum to a public prosecution. There is an urgency that the law be vindicated.

Particularly in this world of shifting news cycles and short sound bites, a prosecution of someone such as Trump should relate to recent facts, not a claim, distant in memory, in which much of the public may have lost interest.

No former president has ever faced public prosecution, except Richard Nixon, and he was pardoned just in time.

Even if Smith files an indictment, it won’t prevent Trump from running for president. A judge may put off the trial if he is campaigning, lest the trial abridge Trump’s free speech rights. If the trial proceeds and Trump is acquitted, he will paint himself as a victim. If there is a hung jury, there will be an avalanche of criticism against the Democrats.

Poor Merrick Garland. Hamlet, like Garland a man of action delayed by thought, had fewer considerations surrounding his decision.

Donald Trump has been treated with more deference and generosity by the federal criminal justice system than maybe any person in the history of the United States. He should have been in prison 10 times over by now. DOJ must uphold the rule of law and indict Trump assuming the publicly available evidence is admissible and not refuted by other evidence, even if it fails in the attempt.

That’s why we have a rule of law — so we do not become a banana republic.

James D. Zirin is a former federal prosecutor in the Southern District of New York.