Last week, ABC News reported that John Eastman—the former Trump attorney at the center of the plot to overturn the 2020 election—was still at it. Indeed, video from a closed-door event in March showed Eastman rousing a crowd to pressure Wisconsin legislators to decertify the state’s 2020 election results.
“If they’re not going to exercise [that power], then we need to find people who will,” Eastman told the crowd.
Eastman does not appear at all chastened by the threat of legal consequences for his actions. Among the ringleaders of the attempted 2020 coup, this cavalier attitude is not unusual. Steve Bannon, for instance, has spent recent months helping to organize hundreds of fellow coup supporters to take over local election apparatuses ahead of the 2024 election, despite being under indictment for contempt of Congress. Other leaders in Trump’s coup attempt, like former Roger Stone associate Jason Sullivan, continue to push the Big Lie and threaten violence against political opponents.
And then, of course, there’s the former president himself, who New York Times reporter Maggie Haberman said last week “is running” for president in 2024 “barring a significant change.” Trump continues to send out weekly missives against “cowards” and “many Republican leaders who didn’t act” to overturn the election, signaling another coup attempt would be on the table in 2024.
Ultimately, the various prosecutors investigating the former president have done nothing to demotivate Trump and his supporters from continuing their assault on democracy. Those investigators, in various ways and to various degrees, seem to be dithering in deciding whether or not to prosecute Trump and his top allies. Those investigations include the Department of Justice team looking into Jan. 6, 2021; New York Attorney General Tish James’ civil probe of Trump’s business; Manhattan District Attorney Alvin Bragg’s criminal investigation of Trump’s business; Fulton County District Attorney Fani Willis’ criminal investigation of Trump’s efforts to subvert the election in Georgia; and Westchester District Attorney Mimi Rocah’s criminal investigation of the Trump Organization’s Westchester golf course.
Trump has yet to be charged for possible crimes in these cases, and those in his inner circle seem to be comfortable continuing potentially criminal behavior. What then is the endgame for all of these prosecutors? What strategic choices might they be making? And what might the thinking be behind their decisions?
I talked through these questions with former presidential investigators and a defense attorney for a former vice president. Together we came up with five potential options for these prosecutors. None is good. But it’s clear doing nothing might be the worst option of all.
Option 1: Let Trump Off the Hook
This is the route some fear investigators have been taking since Trump left office. Another name for this approach might be the “Chickenshit Club” strategy. The term was coined after James Comey admonished prosecutors in the U.S. Attorney’s Office for the Southern District of New York for only taking less high-profile cases that they felt certain they were going to win.
What is the strategic thinking behind being a member of the “Chickenshit Club”? There is a legitimate concern that if the Department of Justice goes ahead with a prosecution now—however righteous—a future DOJ might abuse that precedent to go after a corrupt future president’s political enemies without any real basis. “One of the things that’s holding [Attorney General Merrick] Garland back is the fear that we don’t want to be seen as one of those republics where as soon as you have a new government, you go ahead and indict everybody in the old government,” said Martin London, former Vice President Spiro Agnew’s onetime defense attorney.
Another fear would be that prosecuting Trump for his conduct leading up to Jan. 6 could unleash more political disruption, and even potentially violence, or at least be to Trump’s political benefit in a future campaign. “If you indict Trump, you run the risk of having a sort of major revolt” among his supporters, argued David M. Dorsen, a former assistant U.S. attorney in the Southern District of New York and assistant chief counsel of the Senate Watergate Committee.
There is also a legitimate fear that if you go after “the king” and you miss—say, with an acquittal or a hung jury—the consequences could be more disastrous than doing nothing at all.
Since so many different prosecutors are looking into Trump, there could also be a hope among these different offices that another investigator will be the one to bite the bullet and go first. When he was working for legendary New York prosecutor Robert Morgenthau, Dorsen says, members of the U.S. attorney’s office would fight to grab high-profile cases. That does not appear to be the case this time: “Here, everybody is saying, ‘After you.’ ”
Option 2: Only Pursue Trump in Civil Court
One variation of the “Chickenshit Club” route would be for criminal prosecutors to wait until James files civil charges and let that case—along with previously filed tax fraud charges against the Trump Organization—be the final word.
“It remains unclear whether Donald Trump will be charged criminally, but I would fully expect there to be a civil enforcement action by the New York attorney general against him and the Trump Organization that may severely cripple the Trump Organization and potentially put it out of business,” said Daniel Goldman, the chief counsel for House investigators in Donald Trump’s first impeachment and a former assistant U.S. attorney in the Southern District of New York. “I expect there to be some accountability on that conduct related to his personal business matters.”
The hypothetical benefit of the civil approach is that it would at least offer some financial accountability for Trump without the potential downsides of criminal action. In addition to those mentioned above in option one, these downsides include a higher burden of proof. If Bragg were to pursue criminal charges against Trump on the same evidence as James, for instance, he’d have to prove that Trump had criminal intent in deceiving investors about the valuations of his properties, that he knew those valuations were wrong, and that this criminal conduct caused a loss to someone else. James’ standard would be lower. (That higher burden of proof, it should be said, doesn’t mean that the Manhattan DA has no case.)
While James has already compiled and made public vast amounts of evidence, simple financial accountability for Trump is far from a given. Because the Trump Organization is a privately held company that is backed largely by a single bank, a true reckoning could be hard to come by no matter the evidence. If Trump’s backers refuse to abandon him, there’s only so much James might be able to do to punish his business for financial crimes.
It must also be said that Trump has over the course of six different decades survived hundreds and hundreds of civil actions with his businesses still intact.
Option 3: Charge Donald Trump in Criminal Court
It’s possible that these prosecutors only appear to be holding back, but are actually taking the time they need to get all of their ducks in a row. Under this premise, investigators are not letting Trump off the hook but nailing down an airtight case against him and those who perpetrated Jan. 6, starting from the bottom up. “Charging 770-plus defendants is the largest case in history of the DOJ, and it is a herculean task to prosecute that number of cases,” said Goldman. “It was imperative for the department to prosecute and get off the street the people that were engaged in this violent behavior.”
Recent reporting indicates that, whatever the reason for the delay, prosecutors are finally turning their eyes toward the ringleaders of Jan. 6. As the New York Times reported last month, prosecutors have “substantially widened” the probe beyond just those who invaded the Capitol.
Trump being held criminally accountable for his role in the attempted insurrection and coup would have the strategic upside of defending, preserving, and upholding the rule of law even if it runs the risk of further political turmoil. Under this line of argument, handing Trump or anyone else who threatens democracy a Get Out of Jail Free card because he’s politically powerful would just be inviting more coups. Eventually, one might succeed. “I think the only real hope for maintaining our democracy is maintaining the rule of law,” Goldman said.
If prosecutors are thinking similarly, it’s possible that delays can be chalked up to budgetary constraints and the wide-ranging nature of the investigations.
Option 4: The Spiro Agnew Deal
Perhaps the least likely of all of the options would be for prosecutors to offer Trump a plea deal. Such a deal, if Trump accepts, could, hypothetically, result in no jail time for the former president. Consider that former Vice President Spiro Agnew pleaded “no contest” to one count of tax evasion and agreed to resign from office. Under such a similar deal, Trump could agree to never run for office again and receive no jail time.
There are many problems with this approach. For starters, there would be no way to hold Trump to the deal. Dorsen notes, “If Trump pleads no contest and he agrees never to run for office, and if he runs for office anyway, what’s going to happen?” Different courts in different states might reach different determinations about whether he could be on the ballot. In other words, there would be chaos.
London, who negotiated the deal for Agnew, also said such a Trump deal would be a “steep uphill climb” for a number of reasons. Critically, Agnew was already in office and had a very real chance of being elevated to president despite a looming indictment for bribery and tax fraud, because President Richard Nixon was himself embroiled in Watergate. “This was all happening during Watergate and Nixon was hanging on by his fingernails, and the notion that Nixon could go and that Agnew would then be the president was something that the Department of Justice and [Attorney General] Elliot Richardson just couldn’t tolerate,” London said.
In the current scenario, Trump isn’t even in office anymore, so why give him such a sweetheart deal? “That was a once-in-a-lifetime, once-in-several-lifetimes deal, because there were unique circumstances,” London reiterated about the Agnew situation. “I don’t see how you could bring that to bear against Trump.”
Option 5: The Ambiguous Threat
One final possibility that no prosecutor will ever admit to is this: holding the threat of prosecution over Trump’s head in the hopes that he doesn’t run for office. The implication of this move is that if he decides to go forward with a 2024 candidacy, then he will face prosecution, and if he doesn’t, then he won’t. This idea has some intuitive appeal: It theoretically keeps Trump from threatening our democracy again, and it doesn’t put the country through the turmoil of sending a former president with a wide base of support to prison. But there are a number of problems with this approach.
The first is, how do you communicate and enforce such a deal? Delaying investigations for months into 2023—as appears to be the case—when Republican primary candidates will be deciding whether to run, could serve the purposes of an implicit threat. But eventually prosecutors will have to say what their intentions are. The second they announce either way, Trump could decide to run.
If Trump does announce a run before a prosecutorial decision is made, and investigators turn around and announce a criminal prosecution, Trump will use any delayed case as evidence of corruption. “A second-chance indictment [announced after a candidacy is declared] will be seen as a purely political thing, and I think it will backfire and hurt the Democrats,” London said. “You can’t indict this guy at the last minute. If you do, it’s going to be a foul odor.”
Further, the threat hanging over his head could actually serve the opposite purpose, motivating Trump to run for office as a public shield against charges, which would allow him to claim any prosecution is part of a long-running witch hunt against him politically. “I think part of the reason he’s thinking of running is he thinks that will help him avoid accountability,” Goldman said. Ultimately, trying to scare somebody like Trump into doing what may be in his best interests—quietly cashing in his chips and going away in order to avoid the risk of jail time—is impossible. The smartest outcome might ultimately be to simply enforce the law and file charges if they are warranted, no matter what the possible political cost.