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By all indications, former President Donald Trump is preparing to announce his 2024 presidential bid, possibly as soon as an event Nov. 15 at his Mar-a-Lago club in Palm Beach, Florida. Could his status as a presidential candidate limit his exposure in several continuing legal battles?
Legal experts told PolitiFact that Trump wouldn’t benefit in any official way by formally announcing his candidacy, especially two years ahead of the next election. And the unofficial benefits would be modest at best, experts said.
"Being a candidate gives Trump no legal protection from criminal prosecution for crimes committed during or after his presidency," said Mark Osler, a University of St. Thomas law professor. "Were he running as an incumbent, that might be different, but right now his status is ‘Florida resident,’ not ‘president.’"
The most significant legal concerns for Trump involve these four issues:
• Handling of presidential records: The Justice Department is investigating government documents moved from the White House to Mar-a-Lago. Federal officials in August searched his estate and removed thousands of documents, including some that were classified. This could result in criminal charges, but none have been filed yet.
• Trump’s business practices: The office of New York Attorney General Letitia James is spearheading a civil investigation of Trump’s businesses over alleged fraud in valuing its properties. Relatedly, the office of the Manhattan district attorney, Alvin Bragg, is continuing an investigation into possible criminal activity by Trump’s businesses, though this probe's status is unclear.
• Involvement in Jan. 6, 2021, riot: Parallel investigations are underway into the storming of the U.S. Capitol on Jan. 6, 2021, and the events leading up to it. A select House committee has been investigating this for more than a year, and it may eventually produce criminal referrals to the Justice Department. Simultaneously, the Justice Department has been prosecuting hundreds of Capitol rioters. It’s conceivable that Trump could face criminal risks stemming from Jan. 6, but that remains unclear so far.
• Attempts to change state election results: Fani Willis, the district attorney in Fulton County, Georgia, is looking into possible criminal charges involving Trump’s efforts to get state officials to meddle with the 2020 election results in Georgia, which Joe Biden narrowly won.
Officially, Trump wouldn’t be able to gain any protections by formally becoming a candidate, experts said.
"Donald Trump the candidate remains a private citizen, and candidacy will not impact the legal cases against him or legally protect him in any way," said Kenneth Gross, a senior political law counsel at the firm Akin Gump.
Long-standing Justice Department policies prevent sitting presidents from being federally prosecuted, but once they have left office, that restriction no longer holds. The Constitution explicitly says in Article I, Section 3, Clause 7 that former presidents can be indicted for actions undertaken during their presidency.
And the same is true for presidential candidates who are not already serving as president, said Ric Simmons, an Ohio State University law professor. "There are no policy rules or guidelines that prohibit a prosecutor from indicting a presidential candidate," Simmons said.
There is one rule that could potentially benefit a candidate Trump, but it wouldn’t come into play for the better part of two years: longstanding Justice Department norms against making political moves around the time of an election.
This was most recently reiterated in a memo Attorney General Merrick Garland signed May 25, 2022. He wrote:
"The Department of Justice has a strong interest in the prosecution of election-related crimes, such as those involving federal and state campaign finance laws, federal patronage laws, and corruption of the election process. As department employees, however, we must be particularly sensitive to safeguarding the department's reputation for fairness, neutrality, and non-partisanship.
"Simply put, partisan politics must play no role in the decisions of federal investigators or prosecutors regarding any investigations or criminal charges. Law enforcement officers and prosecutors may never select the timing of public statements (attributed or not), investigative steps, criminal charges, or any other action in any matter or case for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party."
Neither this memo nor past ones have set a specific length for the "quiet period" around elections, though 60 days is often used as a rough estimate.
"Some say there is a 60-day dark period, where public filings should not occur, but that is not part of any written policy," Barbara McQuade, a former U.S. attorney for the Eastern District of Michigan, told PolitiFact in 2018.
Any of the existing investigations could proceed until fall 2024, experts said. And if anything, the recent conclusion of the 2022 midterms means that any quiet period is now over and could produce a spike in investigative activity.
"There are lots of notices and approvals required once someone declares for president, but an indictment is possible if approved by the attorney general," said James Robenalt, a lawyer with the firm Thompson Hine and a specialist in Watergate and other political investigations.
Any informal benefits from announcing his bid at this point would be modest, if that, experts agreed.
"While being a declared candidate doesn't afford him any legal protections, it does enable him to claim that any investigation is politically motivated," said Elise Bean, a former congressional investigator for then-Sen. Carl Levin, D-Mich., who now works for the Levin Center for Oversight and Democracy at the Wayne State University Law School.
The question in Trump’s case is whether that would bring any additional advantage. Ever since he lost in 2020, Trump has been hinting that he wants to seek the presidency again, so the rhetorical impact could be minimal.
"This appearance of political motivation might deter a prosecutor from bringing charges, and it could conceivably be a factor in any jury's decision about whether to convict him," Simmons said. "However, given the fact that almost everyone knows that Trump will declare as a candidate already, it is unclear how much this factor would matter."
Either way, any prosecution would be careful to dot every "i" and cross every "t," Gross said.
"I don’t think a formal announcement will inhibit prosecutors, but it will cause them to make sure their cases are buttoned up six ways to Sunday," he said.
Merrick Garland, memo, May 25, 2022
U.S. Constitution, Article I, Section 3, Clause 7
BBC, "Donald Trump: His four biggest legal problems," Oct. 21, 2022
NBC News, "Inside the Justice Department’s decision on whether to charge Trump in Mar-a-Lago case," Nov. 11, 2022
Politico, "6 reasons why Trump’s already bad legal troubles are about to get worse," Nov. 9, 2022
PolitiFact, "6 questions about the timing of the Mueller investigation," July 27, 2018
Email interview with Barbara McQuade, former U.S. Attorney for the Eastern District of Michigan, July 26, 2018
Email interview with Mark Osler, law professor at the University of St. Thomas, Nov. 10, 2022
Email interview with Kenneth Gross, senior political law counsel at the firm Akin Gump, Nov. 10, 2022
Email interview with Ric Simmons, Ohio State University law professor, Nov. 10, 2022
Email interview with James Robenalt, lawyer with the firm Thompson Hine and a specialist in Watergate and other political investigations, Nov. 10, 2022
Email interview with Elise Bean, former congressional investigator for then-Sen. Carl Levin, D-Mich., who now works for the Levin Center for Oversight and Democracy at the Wayne State University law school, Nov. 10, 2022