- The FBI waded into uncharted waters when it executed a search warrant at Mar-a-Lago.
- Trump is the target of an active criminal probe. What comes next, and how might it end for him?
- The inquiry could wrap without charges, Trump could cut a deal to avoid indictment, or he could end up behind bars — but still be able to run in 2024.
The FBI waded into uncharted territory when it executed a search warrant last week at former President Donald Trump’s Mar-a-Lago club and personal residence in Palm Beach, Florida.
According to the unsealed warrant and an accompanying FBI manifest of items seized, the feds recovered 20 boxes from Mar-a-Lago and at least 11 sets of classified documents, including some that were marked top-secret. The warrant also indicated that the Justice Department is investigating if Trump violated three federal laws, including the Espionage Act, related to the handling of national security information.
The raid — and its continued fallout — sparked a national firestorm as the public grappled with the reality that there is an active criminal investigation into the former president of the United States.
It also opened up a slew of questions given the unprecedented nature of the probe. Chief among them: what happens next, and how might this end for Trump?
Here are some potential scenarios:
The investigation concludes with no charges filed
While the FBI’s raid indicates that its investigation has entered an aggressive phase, the inquiry could still wrap without an indictment against the former president.
In the US’s 250-year history, no ex-commander-in-chief has ever faced criminal charges. So indicting Trump would be truly unprecedented.
But for a somewhat similar example, look to Trump’s former personal defense attorney Rudy Giuliani. The FBI raided Giuliani’s home and office last year and seized more than a dozen of his electronic devices as part of a criminal investigation into whether Giuliani broke foreign lobbying laws.
Matias J. Ocner/Miami Herald/Tribune News Service
But earlier this month, the feds returned Giuliani’s devices to him and The New York Times reported that he’s unlikely to face criminal charges related to his work in Ukraine.
Daniel Richman, a former federal prosecutor from the Southern District of New York, also cautioned against assuming that the Mar-a-Lago raid will lead to an indictment and said it’s possible that the Justice Department only wanted to recover the sensitive records Trump had at his Florida property.
“I think that’s one aspect of what’s going on and perhaps the dominant aspect,” Richman told Insider’s Camila DeChalus.
In this scenario, Trump would have a clear path to running for president in 2024 — as he’s repeatedly indicated he’ll do — and landing in the White House again.
Trump agrees not to seek public office to avoid an indictment
On the other end of the spectrum, prosecutors could pursue criminal charges against the 45th president in connection to his handling of official government records upon leaving the White House. If they do, it could go one of several ways.
One potential option with some historical precedent: A deal in which Trump would agree not to seek public office to avoid being indicted.
In 2001, on his last day in office, then President Bill Clinton made a somewhat similar deal with the Whitewater special prosecutor Robert Ray: give up his license to practice law in his home state of Arkansas for five years and the Whitewater team wouldn’t pursue criminal charges against him for lying under oath about his sexual relationship with the former White House intern Monica Lewinsky.
Whitewater investigators also imposed a $250,000 fine on Clinton, which he paid, and the Supreme Court suspended him from arguing cases before it. The court gave Clinton 40 days to explain why he shouldn’t be disbarred after the Arkansas Bar Association suspended him, but rather than face disbarment, Clinton resigned his membership on the Supreme Court bar.
Getty Images
Though the Justice Department’s investigation into Trump’s handling of government records is the most public-facing since the FBI’s raid, it isn’t the only ongoing federal probe connected to the former president. The department is also conducting a wide-ranging investigation into the January 6, 2021, Capitol riot, and several former high-ranking White House officials were subpoenaed in recent weeks as at least two federal grand juries investigate events leading up to the attack.
Prosecutors are also said to be zeroing in on Trump’s actions surrounding the riot, and the former president’s lawyers have reportedly grown more concerned about his own legal exposure in the inquiry.
And then there’s Congress’ separate investigation into January 6, which so far has highlighted five federal laws it thinks Trump may have broken in connection to the riot.
Trump’s defense lawyer, Alina Habba, recently appeared to allude to the possibility of him agreeing not to seek office again in exchange for avoiding criminal charges.
“I’ve sat across from him every time he gets frustrated and I say to him, ‘Mr. President, if you would like me to resolve all your litigation, you should announce that you are not running for office, and all of this will stop,’” Habba said on Real America’s Voice.
Trump is indicted, convicted, and ends up behind bars — but he can still run for president
If Trump is charged with a crime — or crimes — but forgoes a plea deal, the case would proceed to a criminal trial. According to the FBI’s search warrant, prosecutors are looking into whether Trump violated three federal laws:
- 18 USC § 793, a key facet of the Espionage Act relating to the removal of information pertaining to the US’s national defense. Conviction on this count carries a maximum penalty of 10 years in prison.
- 18 USC § 2071, which bars the concealment, removal, or mutilation generally of government records. Conviction on this count carries a maximum penalty of three years and disqualification from holding public office.
- 18 USC § 1519, which prohibits the destruction, alteration, or falsification of records. Conviction on this count carries a maximum penalty of 20 years in prison.
In all, the former president would be looking at potentially being incarcerated for 33 years, according to legal experts.
If Trump is in prison, can he still run for president in 2024? The short answer: yes, and it’s been done before.
As Insider previously reported, there’s nothing in the Constitution that blocks someone from mounting a presidential run if they’re behind bars. The socialist candidate Eugene Debs had been convicted of treason under the Espionage Act when he ran for president in 1920. And Lyndon LaRouche, who was convicted of mail fraud in 1988 and imprisoned, ran for president in 1992.
If he’s convicted for violating two of the three laws mentioned above, Trump could theoretically launch a 2024 presidential campaign even if he’s behind bars. If he’s convicted for violating 18 USC § 2071, however, he would be disqualified from holding office again.
AP Photo
Biden grants Trump executive clemency
President Joe Biden could elect to grant Trump executive clemency — in the form of a pardon, commutation, amnesty, or reprieve — if Trump gets indicted, convicted, or even if he’s under threat of indictment while Biden is in office. The most famous historical example of this was when President Gerald Ford pardoned his predecessor, Richard Nixon, after Nixon resigned from office amid the Watergate scandal.
Congress dropped its impeachment investigation into Nixon following his resignation but he still faced the risk of criminal prosecution on both a state and federal level. In September 1974, Ford granted Nixon a full and unconditional pardon for any crimes he may have committed while president.
While the move was seen as a step towards helping the country heal in the wake of Watergate, it’s also widely believed to be one of the main reasons Ford lost his own bid to serve a full term in the 1980 election against Jimmy Carter.
Now, more than four decades later, legal experts suggest it’s highly likely Biden would grant Trump a pardon or a commutation if he’s convicted, indicted or under threat of indictment in order to avoid further inflaming political divisions in the country.
“My 100% is really that there is no way that a former POTUS is going to spend time in jail, or that Biden (or any normal POTUS) would allow that,” Asha Rangappa, a former FBI agent and a dean at Yale Law School, tweeted.
Aziz Huq, a law professor at the University of Chicago, made a similar point.
A narrow pardon for offenses related to the mishandling of classified information, as opposed to a blanket pardon like the one Ford granted Nixon, “might minimize damage to the rule of law, while shoring up our democratic norms,” Huq wrote in Politico. “While hardly perfect, it might well be the least bad option to protect our constitutional democracy.”
But it’s also worth noting that a presidential pardon wouldn’t shield Trump from possible state charges.
The Fulton County district attorney’s office is currently investigating if Trump and his allies violated Georgia laws in their quest to nullify Biden’s election victory in the state — and some legal experts say this investigation is a bigger risk to Trump than the DOJ’s. The inquiry kicked into high gear this week, when prosecutors informed Giuliani, who spearheaded Trump’s legal effort to overturn the election results, that he is a target of the probe.
Spencer Platt/Getty Images
Giuliani appeared before the special grand jury investigating the matter on Wednesday. If Trump himself becomes a target of the investigation and faces state criminal charges, his only hope for clemency upon conviction would be from a Georgia pardons and parole board.
Trump gets indicted and acquitted following a trial
It’s also possible that Trump could be criminally charged and opt not to cut a deal, and that Biden wouldn’t step in with a clemency grant. If the case goes to trial, a 12-person jury would have to reach a unanimous decision in order to convict Trump, and he’d be off the hook if just one juror broke from the others. If Trump is acquitted following a trial, he would again have a clear road ahead to running for president.
If he does sidestep the legal minefield he’s currently in and makes it back into the White House in 2024, Trump and his allies have made clear that they intend to exact revenge on the Justice Department and the FBI.
It wouldn’t be the first time Trump has interfered with the department’s work.
He made headlines during his presidency for wondering why he couldn’t have “my guys” at the “Trump Justice Department” do his bidding. He famously fired James Comey, the FBI director in charge of the investigation into the Trump campaign’s links to Russia. Then he ordered the firing of the special counsel appointed to investigate Comey’s firing (and only backed off when the White House counsel threatened to quit).
And after he lost the 2020 election, Trump tried to enlist the Justice Department to overturn Biden’s victory and attempted to oust the acting attorney general before backing off when top DOJ officials threatened to resign en masse.
On Wednesday, the former president took to Truth Social to post a Wall Street Journal op-ed by the pro-Trump columnist Kimberly Strassel titled, “The Payback for Mar-a-Lago Will Be Brutal.”
“What went around [last week] will come around hard for the Democrats when Republicans control the Justice Department and FBI,” Strassel wrote, before speculating about how the rule of law will hold up “when a future Republican Justice Department starts raiding the homes of Joe Biden, Hillary Clinton, Barack Obama, Eric Holder, James Comey and John Brennan.”
Michael Caputo, the former top communications aide at the Department of Health and Human Services and one of Trump’s most loyal lieutenants, also alluded to what Trump might do if reelected.
“At the end of this thing the FBI is going to be four different departments spread across the federal government like seeds to the wind and probably based in Wichita,” he told Insider in an interview.
How Trump Legal Problems Could Play Out After FBI’s Mar-a-Lago Raid & Latest News Update
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