On Monday night, the Department of Justice issued a slew of subpoenas to people in Donald Trump’s orbit, a considerable escalation in its ongoing probe into the former President and his associates for their actions on and around January 6, 2021.
In search of some context – as well as some wisdom about what’s next – I reached out to CNN senior legal analyst Elie Honig. Our conversation – conducted via email and lightly edited for flow – is below.
Cillizza: How usual or unusual is it to see so many subpoenas issues in so short a period of time?
Honig: By any measure, 30-plus subpoenas is, to put it technically, *a lot.*
That said, it’s not unusual for prosecutors, typically early in an investigation, to send out waves of subpoenas to anybody who might have relevant information. The general idea is to gather as much information as possible – and there’s nothing wrong with getting too much information, or more information, than you need – and then to cull it down and assess whether the facts you’ve gathered meet any of the applicable criminal laws. Think of subpoenas as laying the foundation for a building. You want a lot of raw materials to work with, and then you can pick out and use whatever best fits the prescribed design.
What’s a bit curious here is this investigation is more than a year-and-a-half old. So this could be seen as “DOJ finally getting serious” or as “DOJ scrambling to make up for wasting too much time going after the assorted people who physically stormed the Capitol without properly focusing on Trump and the true power sources, at least until recently.”
Cillizza: When can we expect to see DOJ make its next moves?
Honig: DOJ has a longstanding policy against indicting a politically sensitive case, or taking overt investigative steps that would be visible to the public (like a search warrant) within 60 days of an election (and we are just inside that period now). There’s an argument that technically this wouldn’t apply to Trump because he’s not on the ballot, but DOJ realistically understands that anything relating to him will be politically explosive, so he’d almost certainly fall within the policy. (The policy also would likely apply to pending investigations involving Rudy Giuliani, Hunter Biden, and Matt Gaetz).
That said, DOJ doesn’t suddenly stop working entirely for 60 days before an election. They are free to continue investigating, going through and assessing their evidence, and potentially preparing charges behind closed doors. So DOJ likely will take the information it gleans from these subpoenas and spend much of the next two months working with that information to figure out next steps, and to determine whether charges are warranted.
Cillizza: When we say an investigation is ramping up, what does that actually mean in terms of the legal end of things?
Honig: It’s tricky to assess where exactly DOJ is in its investigation. Plainly, the investigation is expanding, and the focus is now moving from the people who physically stormed the Capitol, up to the more powerful players behind the effort to steal the election before January 6, who also may bear some responsibility for the January 6 attack itself. So there are unmistakable signs of an investigation that is growing in scope and intensity.
However, DOJ is already arguably is too late on this. Twenty months (plus) have now passed since January 6, 2021, and not a single person in any proximity to Trump or any meaningful position of power has been charged with anything. Nor will anybody in a position of power be charged until after midterms, given DOJ policy against returning politically sensitive indictments within 60 days of an election.
So, realistically, that means no charges until late 2022 or early 2023 at the soonest – but charges are just the start. If DOJ does indict Trump (more on this below), do they expect to try him in late 2023 or early 2024 – by which time he could be the Republican frontrunner, or nominee? Beyond the political complications there, it would be difficult to convince twelve jurors unanimously to return a conviction in that scenario.
Cillizza: What is Donald Trump’s actual legal exposure here (if any)?
Honig: The most likely federal crimes, in my view, would include 1) obstruction of a congressional proceeding (or an attempt, at least), and 2) conspiracy to defraud the United States of a fair election. Both of these would be focused on Trump’s actions leading up to January 6 – the “fake electors” scheme and his pressure campaigns on DOJ, the vice president, and state and local officials. Also in play, but less likely, are charges of seditious conspiracy (if Trump can be linked to acts of violence or force, which has not been established yet by the publicly available evidence) or incitement of a riot (which would encounter substantial First Amendment defenses).
Keep in mind that the Fulton County (Georgia) District Attorney is also running a criminal investigation focused on Trump’s interactions with Georgia state and local officials after the 2020 election. While the DA inexplicably allowed nearly a year and a half to pass before she convened a special grand jury, that case now seems to be moving aggressively towards people in Trump’s orbit, including Rudy Giuliani, Mark Meadows, and South Carolina Sen. Lindsey Graham. We don’t know if the DA will indict Trump, but if that happens, keep this in mind: Any case brought by a local, elected, county-level prosecutor against a former President will face substantial constitutional, legal, political, and practical obstacles.
Cillizza: Finish this sentence: “The chance of Donald Trump being indicted by DOJ is __________%.” Now, explain.
Honig: Haha, nice try, Chris; I don’t do percentages when it comes to this kind of thing, and nobody should try.
There’s simply too much happening behind closed doors at DOJ, and in secret grand jury proceedings (which we cannot, and often do not, know about) that we can’t go making numerical predictions. And ultimately, this will come down to individualized prosecutorial assessments of the strength of the evidence – including the always-tricky question of assessing whether any individual had requisite criminal intent.
What I can say is this: Trump’s potential exposure to federal charges is plainly greater than it was a year ago, or six months ago, at which point DOJ had not even begun to approach anyone in his orbit. We’ve seen a marked change since the spring, and now it is clear that DOJ is focusing on the people around Trump, including his administration and his campaign – and, perhaps as an ultimate target, Trump himself.
