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Despite a bombshell FBI raid over the summer and two ongoing Department of Justice (DOJ) probes, former President Donald Trump has made it through 2022 without a formal indictment.
However, last week's criminal referrals might break Trump's lucky streak in the new year.
In its final public hearing, the House committee investigating the January 6 Capitol riot announced it was recommending that the DOJ pursue four criminal charges against Trump, who is officially running for president in 2024.
Although an indictment will ultimately be left to the DOJ's discretion, the final report released by the committee could give prosecutors more incriminating evidence that they might need to build a case against Trump.
Former federal prosecutor and state elected attorney Michael McAuliffe told Newsweek that the chances that federal, or even state, charges will be brought against Trump as investigations move forward in 2023 are "increasingly high."
He said that while the lawmakers' referrals are a largely symbolic move that won't sway the decisions of Special Counsel Jack Smith, who is overseeing the DOJ's two investigations into Trump, the House report will likely give prosecutors access to testimony that could lead to greater witness cooperation, which could in turn lead to more substantial evidence for criminal charges.
"The DOJ and the state investigators now need the opportunity to digest and evaluate the documentation for hundreds of interviews from individuals who could be witnesses in the potential criminal cases against Trump," McAuliffe said.
The DOJ is investigating Trump's role in the January 6, 2021, riot at the U.S. Capitol as well as the confidential records found at his home in Mar-a-Lago. At the same time, the Fulton County District Attorney's Office is investigating Trump's efforts to overturn the results of the 2020 election in Georgia.
By targeting some of the witnesses who participated in the House committee's probe, prosecutors will attempt to "flip" them for their cooperation, McAuliffe said.
"A target who cooperates would have to acknowledge responsibility for the underlying crimes and provide information about his or her own activities and the actions of others, including Trump," he said. "That's how criminal cases are built in these types of matters."
Attorney Andrew Lieb said that "the tea leaves point to an indictment during 2023" because of the recent criminal trial of the Trump Organization in Manhattan. Because Manhattan District Attorney Alvin Bragg "directly tied The Donald to the crime" in the closing arguments, the DOJ will have a better chance with its grand jury.
But while McAuliffe and Lieb think the likelihood of a Trump indictment is on the rise, former federal prosecutor Neama Rahmani believes that it's more likely the former president won't be indicted in 2023.
Rahmani said that while Smith's appointment as special counsel increased the possibility of a criminal charge, "Time is the friend of the criminal defendant."
Nearly two years after rioters stormed the Capitol, the referrals will do little to move the needle on a matter that many Americans have already come to their own conclusion on, according to Rahmani.
"There is already the perception by some Americans that Trump would be prosecuted for political and not legal reasons, and a partisan congressional referral plays into this perception," he told Newsweek. "[Attorney General Merrick] Garland would have to approve any prosecution, and he may fear he is opening up a Pandora's Box by indicting Trump."
Rahmani said given that Garland seemed unwilling to charge Trump for the documents found at Mar-a-Lago in August, which is "the more easily probable and recent crime," it's even more unlikely that the attorney general would go after Trump for January 6, 2021.
"What leads anyone to believe he has the stomach for a trial related to Trump's role in the Capitol riots or his tax returns," Rahmani said.
But McAuliffe said Garland might also have held off on a more "straightforward" charge to avoid influencing his agency's other investigation, not because he didn't have the evidence to support formal criminal charges. Because an indictment in one criminal matter could limit investigative measures in another, McAuliffe said, "timing of charges is a strategic consideration."
Although a Trump indictment in the new year is "possible," Carl Tobias, a constitutional law professor at the University of Richmond, told Newsweek it is difficult to speculate how 2023 will shape up because much of the information that will be vital in the DOJ's decision is not public.
He said prosecutors will also need to scrutinize the information to ensure that it's clear if Trump violated federal laws so that the DOJ can abide by the guidelines under which Garland has vowed to run his department.
"Garland has repeatedly stated that politics will not be the reason for an indictment and that the DOJ will rely on the law and the facts to support any decision on indictment," Tobias said.
Update 12/28/22, 11:35 a.m. ET: This story was updated with comment from Andrew Lieb.
About the writer
Katherine Fung is a Newsweek senior reporter based in New York City. She has covered U.S. politics and culture extensively. ... Read more