Legal expert: Trump could face even more trouble if Merrick Garland indicts him in D.C., not Florida

If Garland shifts locations from Florida to DC, Trump should be worried, says Harvard Law Professor Laurence Tribe

Published October 12, 2022 3:00PM (EDT)

Merrick Garland and Donald Trump (Photo illustration by Salon/Getty Images)
Merrick Garland and Donald Trump (Photo illustration by Salon/Getty Images)

Former President Donald Trump could face additional legal peril if Attorney General Merrick Garland decides to indict him in Washington D.C. rather than Florida, a legal expert said.

Garland could significantly expand the case against Trump if the DOJ files its indictment in the District of Columbia, Harvard Law Professor Laurence Tribe told MSNBC on Tuesday.

"The real questions before Merrick Garland are not whether to indict, but when? And where? And for which crimes?" Tribe said

"[Garland] would have to decide whether to indict him in Washington D.C., which by the way, he could do even over the Mar-a-Lago offenses because they began when he took the documents illegally from the White House, in Washington, and it was institutions in Washington that he was stiffing and deceiving when he didn't return them," Tribe explained.

According to Tribe, if Garland chooses to file in D.C., he would have the ability to add several other charges to the indictment. "And when it comes to trying the case in Washington, there one could include insurrection and seditious conspiracy, in addition to espionage, theft of government documents, and obstruction of justice," Tribe said. 

When asked if he thought Garland would indict Trump, Tribe reasoned that the three alleged crimes that led to the search and seizures of Trump's property are "strongly provable." From his personal experience as Garland's former research assistant, Tribe claimed that the attorney general "doesn't do things halfway" as he's "enormously thorough." 

"The question of when depends very much on exactly when all the ducks are lined up in a row, when all the witnesses are ready," he added. "Merrick Garland is not going to bring less than an overwhelming case, that I know by knowing him for all these years."

However, The Atlantic's Franklin Foer explained it is difficult to believe that Garland is happy about the choice he has to make: "whether to become the first attorney general in American history to indict a former president."

There are a few reasons to contest the claims that Garland is preparing to indict, Foer wrote. For one, bringing criminal charges against Trump, who is in the opposing party, would be a dramatic show for Garland who "doesn't believe the department should be subjected to unnecessary stress tests." According to Foer, this act, the first of its kind, would introduce "never-ending political warfare" to the Justice Department. 

Foer also explained how the indictment location may affect the charges brought against Trump. If pursued in Florida, the former president will likely be charged in connection with stolen documents at Mar-a-Lago. But if the case is brought to D.C., Trump faces charges for his involvement in the Jan. 6 capitol insurrection. 

A Washington trial would be held in the Prettyman Courthouse on Constitution Avenue, a site close to the Capitol.

"This fact terrified the former prosecutors and other experts I talked with about how the trial might play out," Foer writes. "Right-wing politicians, including Trump himself, have intimated violence if he is indicted.

Garland would also have to deal with the right-wing media circus that comes with Trump's complaints and conspiracy theories about his opponents. Much like the Capitol on Jan. 6, the D.C. courthouse could become a militant ground for protesters and counter-protesters alike. Garland may also become incredibly unpopular on both sides of the political spectrum — he will either appear too lenient among the left, or be condemned as an enemy of the right.

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Despite all these reasons not to proceed, Foer believes that Garland will eventually indict.

"Over the course of my reporting, I came to appreciate that the qualities that strike Garland's critics as liabilities would make him uniquely suited to overseeing Trump's prosecution," he writes. "The fact that he is strangely out of step with the times—that he is one of the few Americans in public life who don't channel or perform political anger—equips him to craft the strongest, most fair-minded case, a case that a neutral observer would regard as legitimate."

Garland has shown his tenacity in holding Trump accountable: he asked the court to unseal a large amount of seized documents, defended the FBI during Trump's rampage against them, and has not allowed the ex-president's legal team to stall the investigation. 

Foer also believes that his term limit is another major reason why Garland will move forward with the charges. On January 20, 2025, Garland may not be the Attorney General anymore, and if he's replaced by a far-right appointee, the case against Trump will likely be dropped immediately. 

"The deadline for indicting Trump is actually much sooner than the next Inauguration Day," Foer writes. "According to most prosecutors, a judge would give Trump nearly a year to prepare for trial, maybe a bit longer. That's not special treatment; it's just how courts schedule big cases."

By Samaa Khullar

Samaa Khullar is a former news fellow at Salon with a background in Middle Eastern history and politics. She is a graduate of New York University's Arthur L. Carter Journalism institute and is pursuing investigative reporting.

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