What would you do if you were Merrick Garland? Would you prosecute Trump? Or would you walk away, concerned you were playing politics?

Step one appears easy: put off any decision until after the midterms. Trump is not a candidate, key issues driving the midterms (inflation, Roe) are not his issues, and while Trump is actively stumping for many candidates, initiating any prosecution before the midterms is just too obvious. Nothing else about Mar-a-Lago has had an urgency to it (months passed from the initial voluntary turnover of documents and the forced search) and announcing an...

What would you do if you were Merrick Garland? Would you prosecute Trump? Or would you walk away, concerned you were playing politics?

Step one appears easy: put off any decision until after the midterms. Trump is not a candidate, key issues driving the midterms (inflation, Roe) are not his issues, and while Trump is actively stumping for many candidates, initiating any prosecution before the midterms is just too obvious. Nothing else about Mar-a-Lago has had an urgency to it (months passed from the initial voluntary turnover of documents and the forced search) and announcing an indictment now would be a terrible opening move. So if you’re Garland, you have some time.

On the other hand, waiting until after the midterms can be dangerous if as expected the Republicans take both the House and the Senate. Even with slim majorities, Republicans will likely initiate their own hearings into Hunter Biden’s laptop and how the FBI played politics ahead of the 2020 election.

Holding off an indictment until that is underway risks making your case look like retaliation for their case. That’s a bad look for a Department of Justice that claims it does not play politics. It would look even worse if the Republicans try and cut you off, opening some sort of hearings into the Mar-a-Lago search prior to an indictment. Nope, if you’re Merrick Garland, you are caught between a rock and a hard place.

But there is a bigger question: if you are Garland and you indict Trump, can you win? Candidate Trump is already earning a lot of partisan points claiming he is the victim of banana republic politics, and any indictment ahead of 2024 (it matters zero if he has formally announced or not; he is running, of course) will allow him to claim he was right all along.

An indictment will allow Trump to fire both barrels, one aimed at Garland and the other at the FBI. These, along with the dirty tricks a Republican investigation into the FBI and Russiagate will expose, will make Trump look very right. He was the victim of partisan justice by a repeat-offender FBI. If public opinion moves further to Trump’s side, Merrick Garland through his indictment will have just reelected Trump. The spooks call that blowback.

Any action against Trump must preserve what is left of faith in the rule of law, or risk civil disenfranchisement if not outright civil unrest. Garland will have to address the most obvious precedent case involving former secretary of state Hillary Clinton, who maintained an unsecured private email server that processed classified material.

Her server held email chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. The FBI found that classified intelligence improperly stored on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.”

Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on her property, who failed to report it. Her purpose in doing all this appears to have been avoiding Freedom of Information Act requests during her tenure as SecState and maintaining control over what records became part of the historical archive post-tenure.

Clinton seems to have violated all three statutes Trump was searched under. If the FBI is going to ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump, and certainly any prosecution of him, must address why Hillary was not searched and prosecuted herself. After all, nobody is above the law.

The other fear holding back Garland would be that of losing the case against Trump outright in court. Classified documents are typically dealt with either via administrative penalties (an officer is sent home for a few days without pay) or as part of some much larger espionage case where the documents were removed illegally as part of the subject spying for a foreign country. Rarely is a case brought all the way to court for simple possession without intent.

Most of the laws Trump may have broken require some sort of intent to harm the United States. In other words, Trump would have had to have taken the documents not just for ego or his library or as some uber-souvenirs but with the specific intent to commit harm against the United States. Garland certainly does not have that, and you don’t take down a former president of Trump’s popularity on legal technicalities.

Other factors which typically play into documents cases are not in Garland’s favor. Despite not being kept in line with General Services Administration standards, the documents appear to have been locked away securely at Mar-a-Lago, the premises themselves guarded by the Secret Service. Trump has already turned over surveillance video of the documents’ storage location, which presumably does not show foreign agents wandering in and out of frame. It is much harder to prosecute a case when no actual harm was shown to have been done to national security.

Another factor in documents cases involves the content of the documents themselves. The uninformed press has made much of the classification markings, but Garland will need to show that the actual content of the docs was damaging to the US, and that Trump knew that. Overclassification will play a role, as will the age and importance of the information itself; after all, it is that information which is classified, not the piece of paper marked Secret. Garland knows Trump will fight him page by page, meaning much of the classified will be exposed in court and/or the trial will move to classified sessions to shield the information but feed the conspiracy machine. One can hear Trump arguing that his right to a public trial is being taken away.

Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time? Did he have specific intent to injure the United States or to obstruct some investigation he would have had to have known about?

Without knowing the exact nature of the documents, this is a tough call. But even with the documents on display, proving to a court’s satisfaction what Trump wanted to do would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump will go to jail for any of this.

Take, for example, the charges of tax evasion now leveled against the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case). Trump Organization CFO Allen Weisselberg, as part of a plea deal, will testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuition, cars, and the like, all outside the tax system. It will be a bad day for the Organization, but loyal to the end, Weisselberg will not testify as to his boss’ mens rea.

The final questions are probably the most important: the DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? Why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely to be used?

And then what? If Garland successfully navigates the politics, if he proves his case in court, and if he secures some sort of conviction against Trump that withstands the inevitable appeals, all before November 2024, then what? Trump’s Mar-a-Lago “crimes” are relatively minor. Could Garland call Trump having to do some sort of community service during the 2024 campaign a win? Pay a fine? It seems petty. It also seems like Trump wins politically whether he wins or loses at Mar-a-Lago.

If you were Merrick Garland, what would you do?