The Volokh Conspiracy

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To Indict Or Not To Indict? That Is the Question.

Garland's dilemma.


After nearly seven years of Trumpamania, I have become immune to stories that Trump will be indicted. Yet, the most recent DOJ filing suggests that there is a roadmap to indict Trump for (among other charges) obstruction of the investigation.

In the past, I have considered Garland's choice about whether to indict Trump for insurrection based on January 6. Seth Barrett Tillman and I wrote an article on this issue. But the Mar-A-Lago allegations are different. These charges concern conduct that arose after Trump left the White House, and there is no obvious constitutional defense (if Nixon v. GSA is on point).

Still, Merrick Garland faces a dilemma. If DOJ indicts Trump, then Trump may see the presidency as his (literal) get-out-of-jail free card. And the prosecution of Trump could galvanize his supporters, leading to his re-election. On January 20, 2025, Trump could order the Attorney General to dismiss the prosecution (assuming his AG gets confirmed). And, he could pardon himself. (Brian Kalt, please call your office.) Perversely, the decision to indict Trump could pave the way for Trump never being convicted of this offense.

And, of course, a self-pardon would not affect a conviction in Fulton County, Georgia. Though, I think the President could not be incarcerated during his time in office.

To indict or not to indict? That is the question.