Trump Will Be Indicted

Since the moment he left office at 12:01PM on January 20^th, 2021, Democrats and establishment Republicans have had the single-minded goal of preventing Donald Trump from ever being able to run for President again. That goal is currently being pursued on several fronts. These are the most visible now:

• Investigations into Trump’s taxes and corporate financial records.
• The January 6^th Committee investigation’s attempt to paint him as an insurrectionist.
• The raid of his Mar-a-Lago home in search of violations of the Presidential Records Act (PRA), mishandling of classified documents, and obstruction of justice.

Any of these investigations could result in an indictment, and we do believe one is forthcoming. However, nothing that results from these investigations can technically prevent Trump from running again for President in 2024. Here’s why:

Let’s start with the claim of PRA violations and mishandling of classified documents in connection with the raid on Trump’s home at Mar-a-Lago. The warrant issued to search former President Trump’s home listed three specific laws he may have broken. While violating any of the three could justify an indictment and result in stiff penalties, only one of them (18 U.S. Code 2071) contains text barring the violator from future public office. But while that particular provision of the law can be applied generally to other public officials, it cannot be legally applied to the office of the President. The reason is that the Constitution specifically describes all of the possible disqualifications for any person seeking the office of the President. Only a Constitutional Amendment, not a federal or state law, can change what disqualifies a person from running for President.

The Constitution states that only the following conditions can prevent someone from assuming the Office of the President:

1. Not being a natural born US Citizen.
2. Being under 35 years of age.
3. Not having lived in the US for at least 14 years.
4. Having been convicted by the Senate in an impeachment trial and removed from office (If the person is a former President).

None of these apply to former President Trump.

As Harvard Law Professor Emeritus Alan Dershowitz points out, “He (Trump) can run for president even if he’s indicted, convicted, and wearing striped shirts, prison garb”. “The Constitution provides only four bases for disqualification for president, and being convicted of a crime is not one of them. Congress can’t change the criteria that are in the Constitution for the election of the president.”

Trump could be indicted and convicted of breaking any of the three laws cited in the Mar-a-Lago warrant and it wouldn’t affect his eligibility for the Presidency. The Democrats and the Justice Department know that while the publicity of a such an indictment and subsequent trial might work in their favor, going down this path will not get them to their ultimate goal. The same is true for any violation of tax laws or corporate accounting/financial laws. Those statutes contain no language preventing a violator from running for President, and even if they did, it would be unconstitutional.

Therefore, many Democrats and other Trump critics believe their only real legal option to try and prevent Trump from running for President again must come out of the January 6^th Committee. Specifically, the goal of the Committee is to make the case that Trump ran afoul of the 14^th Amendment. We have emphasized (with bold print) the pertinent parts from paragraph 3 in the 14^th Amendment on which this assertion is based:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

To use this as the basis for excluding Trump from running again, the Committee knows they must make the following legal case in their final report:

1. That the Capitol protests on January 6^th, 2021, constituted an insurrection or rebellion.
2. That Donald Trump engaged in that insurrection/rebellion.
3. That in the context of the 14^th amendment, the phrase “officer of the United States” can refer to a sitting President.

Each of these is a big lift legally, but particularly #3. The first part of section 3 of the 14^th Amendment very specifically calls out the senior government positions to which it applies – Senator, Representative in Congress, elector of President and Vice-President. It then goes on to use the term officer of the United States in conjunction with other lower governmental positions such as member of any State Legislature, or executive or judicial office of any state. Having used specific language for all these positions, it would be a logical assumption that the authors of the 14^th Amendment would have also specifically called out the positions of President and Vice-President if this section were meant to apply to them as well. They did not.

Add to that the fact that the 14th amendment was written in the aftermath of the Civil War in 1867. It was targeted at government officials who supported the Confederacy and the rebellion of the southern states. That context further dilutes the phrase “an officer of the United States” as potentially referring to the sitting President or Vice-President of the United States.

Nevertheless, this is the approach the January 6^th Committee is banking on. It’s a longshot. And prior to the Mar-a-Lago raid, it did not appear the Committee had sufficiently hard legal evidence to make their case that Trump genuinely engaged in an insurrection. On this point, we are convinced that if the Justice Department needs harder evidence to make that case, the FBI will manufacture it for them (whether it is related to the Mar-a-Lago raid or not).

The Bureau has already proven they are willing to go to this length on past investigations related to Donald Trump. They used the fake “Steele Dossier” against him in 2016. FBI lawyer Kevin Clinesmith was convicted of falsifying a key CIA email that entrapped Trump advisor Carter Page. The FBI knowingly included false information, and purposely excluded other significant information, in multiple FISA warrant applications to spy on Trump associates. The FBI not only suppressed damaging information about Hunter Biden’s laptop just prior to the 2020 election, they made up the story that it was Russian disinformation. And now we are learning the FBI influenced social media companies to suppress or disallow information about Hunter Biden’s laptop on their platforms, claiming it was Russian disinformation.

As a matter of law, we’re certain that Trump will ultimately prevail in retaining his legal ability to run for President again no matter which course of action the Justice Department pursues. But that may not matter. What may be even more effective for the Justice Department than trying to legally prevent him from running, is simply getting a case against him into the court system. That case (or cases) can then be stretched out into a series of hearings, rulings, appeals, appeals of appeals, etc. As long as there remains the possibility in the heads of some voters that Trump might at some point be technically disqualified from running, it could suppress his support. If that court battle takes place concurrently with the 2024 Presidential campaign season, Trump will be put at a big disadvantage.

This is what we believe is now the true endgame of the January 6^th Committee, the FBI, and the Justice Department. It is also why we believe the Justice Department will pursue an indictment, because they need a court case against Trump to exist. For all of this to be timed optimally, the January 6^th Committee would need to complete their final report, make sure it contains substantive and actionable evidence that Trump engaged in an insurrection, and then submit it to the Justice Department before the end of the current Congressional session.

The Democrats in Congress have invested a lot of time, money, energy, and political capital into the proceedings of the January 6^th Committee. They’ve learned their lesson from the debacle of the Mueller Report and its presentation to Congress back in 2019 and will not let themselves end up in that same humiliating position again. This time around, the Democrats have maintained much tighter control on every aspect of the hearings and its final report. They are leaving nothing to chance. Unlike with the Mueller investigation, the outcome of the January 6^th Committee will be the outcome they are seeking – a referral to the Justice Department to prosecute Donald Trump on charges of insurrection/rebellion.

At that point, it will be up to the Justice Department to decide when and how to proceed. We would expect them to wait until Trump has officially announced his candidacy for 2024. After all, this is a very risky and expensive undertaking for the Justice Department and there would be little reason for them to take such a risk if Trump simply decided on his own not to run. Besides, they could then claim they scared him into submission. If Trump does decide to run however, we expect the Justice Department and the FBI, having gone as far as they have already, will fight to the death to stop him. They know full well that should Trump get elected, their respective organizations will be entirely gutted and remade. They are correct in assuming that their mission to prevent Trump from running is a fight for their very existence.