Attempts to Prosecute Trump ‘Not Prudential’ and Will Backfire, Legal Experts Say

By Michael Washburn
Michael Washburn
Michael Washburn
Reporter
Michael Washburn is a New York-based reporter who covers U.S. and China-related topics. He has a background in legal and financial journalism, and also writes about arts and culture. Additionally, he is the host of the weekly podcast Reading the Globe. His books include “The Uprooted and Other Stories,” “When We're Grownups,” and “Stranger, Stranger.”
August 19, 2022 Updated: August 22, 2022

News Analysis

The manifold legal moves undertaken against former President Donald Trump, including the FBI’s Aug. 8 raid on his home in Mar-a-Lago, Florida, the Jan. 6 hearings, and the investigation of his business dealings led by New York Attorney General Letitia James, break from long-established protocol about not prosecuting presidents after they leave office and are likely to benefit Trump’s standing among supporters in the long term, legal experts say.

“As a legal matter, none of these various investigations will keep Trump off the ballot. I don’t see it as possible that Trump will be disqualified. The only thing that can keep Trump out of the White House will be the voters,” Josh Blackman, a professor at South Texas College of Law Houston, told The Epoch Times.

As anticipation grows over a possible 2024 run for reelection, a flurry of legal developments have occurred in recent weeks, including the raid at the start of last week; Trump’s arrival in New York two days later to take part in a deposition concerning his business dealings; an order by the district attorney of Fulton County, Georgia, ordering former New York City mayor and Trump lawyer Rudolph Giuliani to appear before a grand jury looking into claims that Trump sought to overturn the results of the 2020 election; and a judge’s order on Aug. 18 that part of the affidavit providing a basis for the search warrant used in the Mar-a-Lago raid could be unsealed.

During the New York deposition, one of the latest steps in a years-long civil suit led by James that has also included subpoenas directed at Donald Trump, Jr., and Ivanka Trump, the former president pled his Fifth Amendment right against self-incrimination.

Given that James’s campaign against the former president is a civil rather than a criminal investigation, the consequences of the Mar-a-Lago raid and the Jan. 6 hearings are potentially of far more significance for Trump and his expected reelection bid, experts say. A great deal more evidence concerning the Mar-a-Lago raid and Trump’s alleged mishandling of classified documents is also still expected to come to light, making assessments of the legal basis for the raid premature at this juncture.

But the Constitution clearly sets forth the requirements for a U.S. president—a minimum age of 35, and having been born in America and lived in the country for at least 14 years—and Trump obviously meets these requirements, which no one has the legal authority to change arbitrarily, experts note.

Based on the facts now known, the recent moves against the former president are unlikely to damage his reelection bid and may ironically have the effect of motivating undecided voters who find the efforts to prosecute unseemly and not in keeping with traditional approaches to dealing with ex-presidents, they say.

Trump Mar-A-Lago Raid
Local law enforcement officers in front of the home of former U.S. President Donald Trump at Mar-A-Lago in Palm Beach, Fla., on Aug. 9, 2022. (Giorgio Viera/AFP via Getty Images)

The Government’s Case

The Mar-a-Lago raid purportedly sought to retrieve documents that federal authorities had requested for months without success. According to a receipt list unsealed on Aug. 12, federal agents seized 11 sets of documents with classified markings or that were confidential or secret.

The raid proceeded on the basis of a longstanding attitude on the part of federal law enforcement that sees the presidency in terms of two separate frameworks, Akram Faizer, a professor of law at the Duncan School of Law at Lincoln Memorial University in Harrogate, Tennessee, told The Epoch Times.

“There’s the president, who is a person serving for four to eight years, and then there’s the office of the president that continues in perpetuity after the president leaves office. And it’s not fully resolved, but I believe that the government’s understanding is that even after a president leaves office, the documents he has are those of the presidency of the United States, not his own. There are good reasons for that,” Faizer commented.

The reasons have to do with the safeguarding of sensitive and classified information whose public accessibility would not serve American interests. Here, the reasons for the government’s stance rest on a substantial body of past protocol, Faizer argued. Faizer cited the historical example of the Cuban Missile Crisis, in which then-President John F. Kennedy, Jr., persuaded Soviet Premier Nikita Khrushchev to withdraw Russian missiles from Cuba partly through quid-pro-quo negotiations that included an offer to pull U.S. Jupiter missiles from Turkey and Italy, Faizer said. But the content of these negotiations did not immediately come to light and is still not widely known. They were made available to scholars more than three decades later.

“The Kennedy administration never disclosed it publicly, and I don’t think any subsequent administrations publicly disclosed it as a matter of U.S. policy. Their explanation was that the missiles were getting old and had to be replaced. But the reality is that we withdraw them, and that’s important for the office of the presidency. We didn’t want to be seen as undermining an ally, or to convey publicly to the world that we were willing to take a haircut on Turkey’s security or our own security,” Faizer said.

Having said that, the law with regard to the status of classified information is still not fully settled, Faizer acknowledged. From this point of view, Trump’s claims to have unilaterally declassified certain of the documents cannot be dismissed, he said.

“The law is kind of open-ended as to whether a president can declassify information. The administrative agencies under the president’s control have procedures to declassify, but I think that is not governed by statute but by executive order,” Faizer said.

Epoch Times Photo
Former President Donald Trump speaks at a rally Casper, Wyoming, on May 28, 2022. (Chet Strange/Getty Images)

A Former DOJ Lawyer’s View

In agreement with Faizer about the latitude given to presidents and the authority of executive orders is H. Jefferson Powell, a professor of law at Duke University and a former deputy assistant attorney general in the Office of Legal Counsel at the Department of Justice.

“The actual classification system itself stems from presidential powers. And while administrative law does limit the president’s discretion, it does so mostly through process. The president has the power to do it, the president has the power to undo it,” Powell told The Epoch Times.

“On the other hand, presidents can be bound by administrative rules that govern the exercise of their executive power, and presidents are regularly bound by statutes that tell them they may do or not do something. There are procedures that must be followed, and the president can’t simply wave a magic wand to make it go away,” Powell added.

“But in the absence of procedural limits, the president can simply say, ‘I’m the source of the classification and I’m removing it in this case,’” he continued.

Statutes of Limitations

If Trump took action to declassify the documents while still in office, there may not be much that the Justice Department can do, Powell suggested. It is hard from a legal standpoint to go after a former president for anything he did while in office, as some have sought to do for Trump’s alleged disclosure of confidential information concerning ISIS to a Russian foreign minister and ambassador during a White House meeting in 2017, said Powell.

“Russia is a hostile power, and I don’t have any problem with the notion that it is an impeachable offense to compromise American national security. But that ship has sailed. There’s no current practical question about whether Trump might have committed an impeachable offense while in office,” Powell continued.

Given these realities, Faizer thinks it highly unlikely, based on the facts now known, that the Mar-a-Lago raid will result in a prosecution and interfere with or prevent a 2024 run.

“I don’t think there’s enough to prosecute Trump. For a prosecution, there has to be some intent to criminality, and I don’t see that there. If Merrick Garland wants to prosecute somebody, he has to get a unanimous jury, crystal clear. That’s hard to do even when someone does something wrong,” Faizer said.

“If you and I had those documents squirreled away in our apartments, then we could be prosecuted, but we’re not the president or former president of the United States,” he added.

Prudential Considerations

In addition to the difficulties in achieving unanimity among jurors, the question stands as to whether pursuing a former president on such grounds is good form. In Faizer’s view, the political consequences are likelier to play into Trump’s hand than those of his enemies.

“It’s a good thing that, in our country’s history, typically former presidents are left alone. Former presidents are often opposed to the political agendas of their successors. For example, Barack Obama was very anti-Trump, and Trump has been very vocally hostile to President Biden, too,” Faizer said.

“You don’t want the United States to be like Brazil or Pakistan, where once you’re out of office, they put you in jail. It argues against a peaceful transition of power. How do you unanimously convict a man who got 75 million votes? That’s a pretty tall order,” he added.

Powell concurred with Faizer that going after a former president will give the appearance of impropriety and will not sit well with many of the voters who will ultimately decide what happens in 2024 and beyond.

“Did the former president say certain things and disclose information that he shouldn’t have? That’s a constitutional and legal question, but it’s a different kind of question. Those are both separate from the prudential decision about how to run the Department of Justice or the administration. There are things that might otherwise be appropriate that you might not do because it creates a sense in many people that power is being abused,” Powell said.

“You can’t do your job properly if you are constantly not assuming good faith on the part of policymakers. I read a lot of journals where people make statements [about the issue here]. All I know is that I hope Merrick Garland gave full weight to the prudential reasons not to execute a search warrant,” he added.

Epoch Times Photo
New York State Attorney General Letitia James gives a speech as she participates in a protest in Foley Square, after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the landmark Roe v. Wade abortion rights decision later this year, in New York City on May 3, 2022. (Reuters/Jeenah Moon)

Political Motives?

The civil litigation underway against Trump in New York, which is driven by allegations that Trump and his business associates practiced accounting fraud and misstated the value of assets for financial gain, in reality, has self-serving motives of its own, Michael Alcazar, a professor in the Department of Law, Political Science, and Criminal Justice at CUNY, told The Epoch Times.

“Letitia James’s civil suit appears to be politically motivated. A successful case against former President Trump would be a big boon for her career and her current bid for reelection,” Alcazar said.

“It seems evident to everyone but James that pursuing this case would be futile since Trump exercised his Fifth Amendment rights. Experts believe that without Trump’s testimony, there is no meat to her civil case,” he continued.

In Alcazar’s view, James sees Trump as a political enemy and the civil suit is a means of keeping a hostile media spotlight on the former president during the run-up to November 2024.

James may well push ahead with the litigation, but Trump’s lawyers are likely to disavow that their client had knowledge of how financial institutions undertook valuations for Trump’s real estate, Alcazar predicted.

“This will protect their client from a lawsuit from the attorney general,” he said.

The Epoch Times has reached out to the Justice Department and James’s office for comment.

Michael Washburn
Michael Washburn is a New York-based reporter who covers U.S. and China-related topics. He has a background in legal and financial journalism, and also writes about arts and culture. Additionally, he is the host of the weekly podcast Reading the Globe. His books include “The Uprooted and Other Stories,” “When We're Grownups,” and “Stranger, Stranger.”