Criminal investigations in Atlanta, Washington and New York focusing on former President Donald Trump will determine by the end of this year whether prosecutors and Democrats prevail in their long-running and increasingly long-shot efforts to lock him up.
The probe that Democrats considered a virtually open-and-shut case against Mr. Trump — his unauthorized storage of classified documents at his Mar-a-Lago home in Florida — was undermined significantly in the past week by disclosures that President Biden also had classified documents at his Delaware home and at a former private office he used in Washington.
The revelation of the second batch of documents, which were found in Mr. Biden’s garage with his prized 1967 Corvette Stingray in Wilmington, forced Attorney General Merrick Garland to appoint a special counsel to investigate the matter.
Another stash of classified documents was found in the library at his home and then, on Saturday, the White House announced that five more pages of government secrets were discovered in the president’s home in Willmington.
Jonathan Turley, professor of public interest law at the George Washington University Law School, said prosecuting Mr. Trump for mishandling classified documents risks a backlash among voters who suspect a double standard at play.
“There are many voters who are skeptical about the motivations of both the media and even the FBI,” Mr. Turley said. “When you see Trump being pursued on six different fronts by different prosecutors, it can have the opposite effect. It can reaffirm the misgivings of some voters that these are political prosecutions.”
While Mr. Turley said he believes the Mar-a-Lago probe is “a serious criminal case,” he said the discovery of the Biden documents “complicates the narrative” by Mr. Biden and other Democrats that Mr. Trump engaged in wrongdoing.
Mr. Trump calls the Mar-a-Lago investigation “a giant scam.”
The former president also laid out a possible defense for a trial court, if it comes to that. He noted that the Biden documents were at an unauthorized, unguarded think-tank office “for many years,” contrasting it with “the Secret Service guarded, & otherwise very secure, Mar-a-Lago papers.”
“Biden was not then President, had no power to declassify, & came under the very tough Federal Records Act,” Mr. Trump said in a post on his Truth Social platform. “I come under the much more generous Presidential Records Act, was having productive discussions with Radical Left [National Archives], & did everything right.”
Referring to Hillary Clinton avoiding prosecution for having a private email server in her home, former federal prosecutor Andrew McCarthy wrote in the New York Post, “if both Clinton and Biden get a pass, there is no way the Justice Department can justify charging Trump.”
Special counsel Jack Smith also is investigating Mr. Trump’s efforts to overturn the 2020 presidential election in battleground states, and Democratic Manhattan District Attorney Alvin Bragg is believed to still be pursuing a criminal investigation of Mr. Trump’s business operations.
A New York judge imposed a maximum $1.6 million penalty against the Trump Organization on Friday for its conviction on 17 felonies including criminal tax fraud and falsifying business records. Mr. Trump and his family were not charged in the case.
But an investigation in Georgia could hold the most imminent legal peril for Mr. Trump. A judge has scheduled a hearing for Jan. 24 on whether to release all or portions of a report by a special grand jury that has been investigating potential election-law violations in the weeks after the 2020 presidential election.
The grand jury has heard testimony from dozens of witnesses, including former Trump attorney Rudolph W. Giuliani; Trump ally Sen. Lindsey Graham, South Carolina Republican; and ex-White House Chief of Staff Mark Meadows.
Fulton County District Attorney Fani Willis, a Democrat, started the probe in early 2021 over a phone call in which Mr. Trump urged Georgia Secretary of State Brad Raffensperger to “find” the 11,780 votes needed to overturn Mr. Biden’s victory there.
Ms. Willis has said she is considering subpoenaing Mr. Trump and has notified at least 18 other people that they are “targets” and could face indictment.
Former federal prosecutor Renato Mariotti, who specialized in fraud cases, predicted that Ms. Willis is “gearing up to indict Donald Trump.”
“The allegations are very serious,” Ms. Willis told The Washington Post last week. “If indicted and convicted, people are facing prison sentences.”
If the special grand jury does recommend criminal charges, Ms. Willis would need to decide whether to seek indictments from a different grand jury that is authorized to do so.
Mr. Trump has referred to his conversation with Mr. Raffensperger as a “perfect” phone call and says the investigation is politically motivated to stop his 2024 presidential campaign. He said Ms. Willis is on a “witch hunt” and she’s ignoring a crime wave in Atlanta while seeking to prosecute “a very popular president.”
A Brookings Institution report authored by senior fellow Norman Eisen and others said Mr. Trump “appears to be at substantial risk of prosecution for both election and non-election crimes in violation of Georgia state law.” Those violations include solicitation to commit election fraud, intentional interference with performance of election duties and interference with primaries and elections.
The report said that because of Mr. Trump’s call to Mr. Raffensperger and potential orchestration of a “false electors scheme, “Trump may be shown to have exhorted Georgia officials to change the lawful outcome of the election.”
“Trump’s full course of conduct before and after the election suggests clear and consistent intent to solicit and pressure government officials to reverse the election results,” the report said. “Criminal liability under Georgia state law may attach not only to Trump but to others, such as Rudy Giuliani, the 16 false electors, all of whom received target letters from Willis indicating they may face criminal charges.”
Mr. Turley said the Georgia probe “is not a particularly compelling case for prosecution.”
“Much of that investigation turns on the words used by Donald Trump in the telephone call that he’s simply asking for state officials to find a certain number of votes,” Mr. Turley said in an interview. “I’ve been a criminal defense attorney my entire life. That is not a very credible basis for a criminal charge.”
He said Georgia prosecutors may have found something else that they’ve yet to reveal, but the Trump phone call can be construed “in a clearly non-criminal fashion.”
“Trump can argue in court that he was simply pointing out that there’s a small number of votes that separated him from [Mr. Biden], so he can construe that statement as saying that it wouldn’t require many votes to change the outcome of the election in Georgia,” Mr. Turley said. “That’s different from saying that you want them to manufacture the votes.”
The special counsel probe on efforts to overturn the 2020 election is also weighing evidence provided by the now-dissolved House Jan. 6 committee, which recommended that the Justice Department bring four criminal charges against Mr. Trump and others.
While federal prosecutors often say they are not swayed by public sentiment, there is some evidence that the public is slowly changing its attitudes about the attack on the Capitol on Jan. 6, 2021.
A University of Massachusetts Amherst Poll released last week shows that 41% of voters now refer to the episode as an “insurrection,” compared with 48% who called it an insurrection in April 2021.
While 55% of Americans still refer to the event as a “riot,” more people are calling it a “protest,” too. In April 2021, 43% of voters called it a protest, compared with 49% of respondents who now say it was a protest.
But the poll also found that 53% of respondents support Mr. Trump being charged with a crime for his efforts to overturn the results of the 2020 presidential election.
“This majority holds among almost all demographic groups, with the exceptions of those with less than a high school degree (45%) and whites (47%); and even among these two groups, the share that supports prosecution is larger than the share that does not,” says Jesse Rhodes, professor of political science at UMass Amherst and co-director of the poll. “Thus, while there is disagreement among Americans about whether Trump should be charged, it is not the case that Americans are equally divided on the issue. Rather, a majority of Americans supports prosecution; a vocal minority – roughly a third – opposes it; and a small fraction is unsure.”