And you thought the big digital entertainment in the months ahead is Donald Trump’s return to Twitter.
Hah. What is coming to a split-screen near you in 2023 is much more dramatic. It is a direct result of Attorney General Merrick Garland’s appointment of a Special Counsel, Jack Smith, to take forward two critical investigations that may well seek to bring Trump to justice, and to show to the American people that no one, not even a former president, is above the law.
What we will also see is the result of the Republicans winning control of the House of Representatives, and their insistence that Joe Biden be impeached for corruption.
Former President Trump will likely be indicted by grand juries hearing evidence on, first, Trump’s possession of classified documents that he took with him to Florida when he exited the White House and, second, whether Trump’s actions in support of the attack on the Capitol on January 6, 2021 were criminal deeds intended to obstruct Congress from fulfilling its constitutional duty that day to certify the 2020 election results and thereby ensure the peaceful transfer of power to the winner, Joseph R. Biden, Jr.
The documents case is very clear cut. Under the Presidential Records Act, all documents in the possession of a president belong to the American people and are to be preserved, transferred and placed under the administration of the National Archives. Whether a document is classified or not is immaterial. A president cannot privately hold the documents. Trump took the documents to Florida and kept them away from the Archives. That several dozen documents Trump kept in his possession at Mar-a-Lago had the most sensitive, restrictive top-secret classifications also present questions of mishandling those materials under the Espionage Act. In not coming clean with the Archives and the FBI on the documents Trump had at Mar-a-Lago, which ultimately led to a forcible search of Trump’s home, Trump may also face an obstruction charge.
Even Donald Trump’s former Attorney General, Bill Barr, believes Trump is “increasingly more likely” to be indicted. In an interview just hours after the Special Counsel was appointed, Barr said:
“If the Department of Justice can show that these were indeed very sensitive documents, which I think they probably were, and also show that the president consciously was involved in misleading the department, deceiving the government, and playing games after he had received the subpoena for the documents, those are serious charges… Given what’s gone on, I think they probably have the evidence that would check the box. They have the case.”
Whether Trump, in trying to overturn the result of the 2020 election, broke the law is also being examined. A grand jury (separate from the president documents matter) is hearing from many of the same witnesses who have testified before the House Select Committee on the January 6 Attack on the Capitol. Those explosive hearings have shown Trump to be in command of a far-reaching conspiracy to prevent Congress from certifying the true result and affirm Biden’s victory – and presidency. A Federal judge in California, in litigation over evidence sought by the Select Committee, has found that Trump may well have broken the law. The judge concluded that Trump “likely” committed felonies, including obstruction of Congress and defrauding the United States. “The illegality of the plan was obvious,” the judge wrote.
The Special Counsel’s work with the two grand juries to reach a threshold legal judgment of whether Trump should be indicted in one or both matters will likely come to a head in the first six months of 2023.
Trump’s declaration that he was entering the 2024 president’s campaign was the trigger for Attorney General Garland’s announcement. It immediately injected the investigations’ timelines onto the political calendar.
Garland cited the imperative of ensuring that these proceedings are not politicised given their nexus with the runup to the next presidential election in 2024:
“Based on recent developments, including the former President’s announcement that he is a candidate for President in the next election, and the sitting President’s stated intention to be a candidate as well, I have concluded that it is in the public interest to appoint a special counsel. Such an appointment underscores the Department’s commitment to both independence and accountability in particularly sensitive matters. It also allows prosecutors and agents to continue their work expeditiously, and to make decisions indisputably guided only by the facts and the law.”
Trump is having none of this. He is enraged and disgusted. As Barr was talking about Trump’s exposure to indictment, Trump was on Fox News lamenting the Russia investigations:
“I have been going through this for six years – for six years. I have been going through this, and I am not going to go through it anymore. And I hope the Republicans have the courage to fight this. I have been proven innocent for six years on everything — from fake impeachments to [former special counsel Robert] Mueller who found no collusion, and now I have to do it more. It is not acceptable. It is so unfair. It is so political. I am not going to partake in it. I’m not going to partake in this.”
The 2024 presidential campaign will become very granular and tangible starting next August, when Trump and other contenders start appearing directly in early primary states, such as Iowa and New Hampshire. This strongly suggests that any decision on whether to indict Trump should be made before the end of June.
That final decision rests not with the Special Counsel, but with the Attorney General – Biden’s Attorney General. Trump, his base, and many Republicans see this as a “Deep State” inquisitor at work to destroy Trump.
Long before these developments, and in anticipation that they would take control of the House of Representatives in the midterm elections just concluded, hardcore pro-Trump Republicans were gearing up to impeach President Biden in 2023.
Last January, Senator Ted Cruz of Texas was explicit:
“Yeah, I do think there’s a chance of that, whether it’s justified or not. Democrats weaponised impeachment. They used it for partisan purposes to go after Trump because they disagreed with him. And one of the real disadvantages of doing that … is the more you weaponise it and turn it into a partisan cudgel, you know, what’s good for the goose is good for the gander.”
The day after Republicans secure their majority in the House in the new Congress, the incoming chairmen of the House Oversight and Judiciary Committees gave a press conference. They said they will start with Hunter Biden, the president’s son, and his business dealings:
“We’re not trying to prove Hunter Biden is a bad actor. He is. If anybody wants to disagree with that, then there’s nothing we have to talk about.”
And then they will move on to the president:
“Our investigation is about Joe Biden. And we already have evidence that would point that Joe Biden was involved with Hunter Biden and so we want the bank records. We’re trying to stay focused on, ‘Was Joe Biden directly involved with Hunter Biden’s business deals and is he compromised?’”
The incoming Oversight chairman, Rep James Comer, Republican of Kentucky, then said that these issues constituted “abuse of the highest order,” which means the “high crimes and misdameanors” cited in Article II, Section 4 of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdameanors.” In other words, Biden’s alleged crimes rise to the level warranting removal from office.
With respect to other “civil officers” of the United States, this means Cabinet officers. There is no doubt that many Republicans are also enraged that the Attorney General would appoint a Special Counsel to conclude that Trump should be charged, and that the final decision rests with the Attorney General who works for Trump’s likely 2024 opponent – President Biden. So Garland faces impeachment. And because conditions at the southern border within Mexico, where hundreds of thousands of immigrants have sought asylum, are so difficult, Biden’s Secretary of homeland Security, Alejandro Mayorkas, is likely also be impeached. There is also the Secretary of State, Anthony Blinken, who would be impeached for “egregiously inexcusable failures” including the deaths of American Marines in the ill-fated withdrawal from Afghanistan.
There is nothing new in impeachment. Biden would become, over a span of the last 24 years, the third of the past five presidents to be impeached.
But there is so much unprecedented with Trump. What he did in office, and the immediate consequences now flowing from it– the appointment of a special counsel to investigate a former president – are unprecedented. An indictment of Trump will therefore also be unprecedented.
In 2023, the impending trials of a former president and the current president will be unprecedented, and will be coming to a screen at your fingertips.