The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
At present, there are at least three prominent investigations in which a prosecutor is investigating his or her political opponent.
First, District Attorney Fani Willis, of Fulton County Georgia was investigating republican State Senator Burt Jones. After the 2020 election, Jones had signed an electoral certificate stating that Trump won the Peach state. Jones is now running for state Lieutenant Governor. Willis, a Democrat, hosted a fundraiser for Jones' Democratic opponent in the LG race. Due to this conflict of interest, a superior court judge disqualified Willis from questioning Jones. The judge said that decision to host the fundraiser was "a 'What are you thinking?' moment with 'horrible' optics." Yet Willis apparently saw nothing wrong with fundraising for the opponent of the person she was investigating.
Second, in Michigan, Matthew DePerno is the presumptive Republican nominee for Attorney General. There are allegations that after the 2020 election, DePerno told election clerks that he needed to inspect election equipment. Now, Dana Nessell, who will likely face DePerno in the general election this fall, has begun an investigation against DePerno. According to the New York Times, the Attorney General's office "requested that a special prosecutor be appointed to continue the investigation and pursue potential criminal charges." You can read the petition here.
The statute does not explain if the Attorney General retains any supervisory authority over the special prosecuting attorney. But if the federal special counsel regulations are any indication, these investigations tend to take on a life of their own. Even Robert Mueller became Inspector Javert.
Speaking of special counsels, let's talk about the third prosecutor who is investigating his political opponent. Of course, I speak about the raid on Mar-A-Lago. According to early reports, the investigation concerns Trump's handling of classified documents. I have no doubt that Garland weighed this decision at some length before he signed off on the search. Will this search lead to an indictment? Who knows. But the optics here are stark: the chief law enforcement officer of the Biden administration is searching the home of the front-runner for the 2024 Republican ticket.
Several commentators have suggested that Trump should announce his candidacy early–before the midterms–to pre-empt any indictments. The thinking goes that DOJ would not prosecute President Biden's opponent in the run-up to the election. I think this thinking is flawed. The fact that Garland signed off on this search, even as Trump is signaling he will run, suggests that the election would not halt a criminal investigation. There is no statute that would bar a prosecution of Trump, even as he goes through the nomination process. The most likely outcome is that Garland would appoint a special counsel to investigate, and even prosecute Trump, as Biden runs for re-election. If you thought the Mueller investigation was unwieldy, this special counsel prosecution would be far, far more unconstrained.
We are veering into uncharted territories if the incumbent president is prosecuting the former president who is running for re-election. And even if Trump is convicted, he still would not be disqualified.