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As much of the U.S. remains fixated on next week's midterm elections, it appears that both former President Donald Trump and the Department of Justice (DOJ) are more concerned about what will follow Election Day.
Rumors are circulating in the GOP's orbit that Attorney General Merrick Garland is preparing to indict Trump within 60 to 90 days after the election, before the 2024 campaign cycle closes off the DOJ's chances of prosecution.
Trump is involved in a number of state and federal probes. At the federal level, Trump is being investigated for the mishandling of presidential documents that ended up at Mar-a-Lago after he left office. He is also involved in the DOJ's probe of the January 6 Capitol riot.
At the same time, Republicans are speculating that the former president will soon announce a formal bid for a second term in the White House. Trump himself has repeatedly hinted that he would "probably have to" run again, and former aides have predicted there's a "95 percent" chance Trump would seek the Republican nomination in 2024.
With the possibility of an indictment on the horizon, experts say it is likely Trump will want to beat Garland to the punch.
"Former President Trump is playing a massive game of chicken," Republican strategist Alex Patton told Newsweek. "It appears former President Trump believes formally filing for office somehow provides him a cloak of immunity. I don't know if AG Garland agrees or not."
From a legal standpoint, political candidacy has no impact on how the law is applied.
Jessica Levinson, a professor at Loyola Law School, told NPR in September that if Trump decides to run for office again, there is no legal impact on any of the criminal investigations against him. "It will have a huge political impact, but there's no legal shift that happens when you're investigating a former president versus a candidate," she said.
While a 2024 presidential bid would not legally prevent prosecutors from bringing charges, Levinson noted that an announcement from Trump could make the DOJ more reluctant to do so. The DOJ could be worried an indictment would look politically motivated and in turn, could cast doubt on the legal decision.
Republican strategist Jay Townsend predicted that if Trump is indicted he'll likely try to make the DOJ look like the problem in an attempt to distract from the actual charges he could face. "So yes, he is now under pressure to announce soon," Townsend said.
Even though the Constitution doesn't bar people charged with a crime or even convicted of one from running for the White House, Brandon Rottinghaus, a professor at the University of Houston, said, "indicting a former president is tricky politics."
Rottinghaus told Newsweek that Garland will have to "thread the political needle" when it comes to deciding whether or not to bring charges against a political figure like Trump, who is likely to assert that an indictment is an attempt to disqualify him from future office.
Knowing that Trump has previously made attempts to claim executive privilege, Rottinghaus said the former president is likely to yield his political status in a similar way when it comes to indictments.
"If the former president can deflect the political impact of any possible charges, he'll certainly try," he said. "He has certainly used his office as a defense against his actions."
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