Journalist David A. Graham, writing for The Atlantic, explained on Monday that there are some key signals to look for that will indicate whether the Justice Department will pull the trigger on an indictment for former President Donald Trump.
Graham expects the indictment will likely come with serious charges that will have come after "a years-long elaborate dance with the law in which he usually stayed just one step ahead."
His "field guide" to predicting the indictments begins with the Fulton County, Georgia case, which wrapped up its special grand jury at the end of the year and will submit the final report with recommendations for any possible indictments.
Trump's lawyers released a statement on Monday saying that it's clear Georgia thinks Trump did nothing wrong because he wasn't questioned by the grand jury. Graham explains that a special grand jury, unlike a regular grand jury, can't bring indictments. So, the idea that Trump is out of the woods isn't the case at all. They will make recommendations to a full grand jury and that will investigate the evidence to see whether or not Trump should be charged.
A hearing is scheduled Tuesday, which Trump's lawyers said they don't intend to attend. Judge Robert McBurney will also decide on whether he believes the rules mandate that the full report be released publicly or not.
Michigan Law School Professor Barbara McQuade told Graham that Fulton County District Attorney Fani Willis would have to decide whether to pursue specific people or whether to do a larger racketeering case for everyone involved. There is an indication that she could choose the racketeering case. Graham noted that she had a "fondness" for that kind of case, which he said was shown when Willis hired Atlanta lawyer John Floyd, who not only wrote a book on racketeering cases, but has prosecuted the top ones in Georgia for the past two decades.
The key indicator in this particular case, according to Graham, will be whether the special grand jury cites Trump for possible charges and if the full report outlines criminality.
In the Mar-a-Lago documents case, the former president faces potential charges for obstructing the attempt to gather the documents he took from the White House, along with a slew of other possible crimes. In that case, the Justice Department appointed special counsel Jack Smith to oversee the probe, and attorney Paul Rosenzweig tells Graham that the special counsel seems to have enough to pull the trigger.
"It certainly seems like the law is clear," he explained. "There's a relatively narrow, confined set of facts. Prosecutors tend to like small cases, not big cases."
But one can't ignore the heft of a presidential indictment, whether the law is simple or not.
"Charges or even a conviction, against Trump on the documents case would be somewhat ironic," he wrote. "A man who has publicly committed far more egregious acts— including the two for which he was impeached—getting busted for stolen documents would be a little bit like Al Capone's conviction for tax evasion."
Still, that's what ultimately jailed Capone in the end.
The other case that Smith is looking at is the Jan. 6 attack on Congress and the attempt to overthrow the 2020 election. Fani Willis' case focuses exclusively on Georgia and the House Select Committee that investigated Jan. 6 focused on a broad swath of possible criminal charges not only for Trump, but his lawyers and top aides as well as other possible officials.
There's a possibility that Smith could try for a "Sweeping case," wrote Graham. The alternative would be to find something more targeted. There's also the risk of a federal prosecution coming at a time that isn't exactly politically expedient for the 2024 election. In fact, Trump has been telling allies that he decided to run because it would make the DOJ's life more difficult, New York Times reporter Maggie Haberman said recently.