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Illustration: A silhouette of Donald Trump appears in the pupil of a large eye, with a red iris, set against a yellow background.
Adam Maida for MSNBC

Which prosecutor could be the first to indict Trump in 2023?

Federal and state criminal investigations are progressing against the former president. Here’s what to watch this year.

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Donald Trump is in for a rough year.

From federal investigations into classified documents at Mar-a-Lago and the Jan. 6 insurrection, to state investigations in Georgia and New York, it can be challenging to follow the myriad legal battles he’s facing. So here’s a recap of what we’ll be following on the Deadline: Legal Blog this year:

DOJ probes into Jan. 6, Mar-a-Lago

Attorney General Merrick Garland appointed special counsel Jack Smith last year to oversee two separate investigations into the former president, who has announced his intention to run again in 2024 after losing re-election in 2020. The first, as Garland explained in his November announcement of Smith’s appointment, is “into whether any person or entity unlawfully interfered with the transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” 

Recall that the House Jan. 6 committee made several criminal referrals for Trump and others, including obstructing an official proceeding, conspiracy to defraud the United States, conspiring to make false statements and, of course, insurrection. As I’ve explained, those referrals don’t bind the DOJ, but they give us a sense of the legal jeopardy Trump faces when it comes to Jan. 6.

The second investigation overseen by Smith is, again according to Garland’s appointment order, about “classified documents and other presidential records, as well as the possible obstruction of that investigation.” The Mar-a-Lago investigation looks more straightforward than Jan. 6, both legally and factually (and, as I’ve explained, is on a different legal planet than Biden’s situation), though charges may well come in both investigations.

Among the charges Trump could face in the Mar-a-Lago case is for retention of national defense information under Title 18 of the United States Code, section 793(e) — part of the Espionage Act. The Republican’s apparent deception in connection with the probe could also earn him obstruction charges — the sort of charge that he may have faced in special counsel Robert Mueller’s probe into Russian election interference had Trump not been a sitting president at the time. Trump doesn’t enjoy that advantage this time.

Georgia election interference

Trump faces potential state charges for election interference as well. Recall his infamous Jan. 2, 2021, call with Georgia Secretary of State Brad Raffensperger in which Trump pressed the state official to find votes that didn’t exist.

A special grand jury convened by Fulton County District Attorney Fani Willis has finished its investigation into the election interference allegations. It’s now up to Willis to decide whether to pursue charges. We may soon learn whether she will, as she said decisions are "imminent" at Tuesday's hearing over whether to release the special grand jury's report. And remember, one difference between federal and state charges is that the U.S. president can’t pardon state crimes (leaving aside, for now, the question whether a president can pardon himself — a subject we’ll return to if it arises).

New York

Trump’s hometown could also charge him. The Trump Organization was convicted last year of tax fraud and falsifying business records, and the Manhattan District Attorney’s Office has reportedly probed Trump himself, including for the Stormy Daniels hush payment to which former Trump confidant and lawyer Michael Cohen pleaded guilty to related federal charges in the Southern District of New York. 

Cohen spoke to Nicolle on the show last week, right after he met with Manhattan District Attorney Alvin Bragg. While Cohen wouldn’t go into detail about the meeting, he said that Bragg is “seriously looking at this case on several different grounds.” Bragg himself has made his own vague comments that suggest more charges could come. When the Trump Organization was fined $1.6 million for tax fraud on Jan. 13, the district attorney said they’re moving on to “the next chapter.” What’s written in that next chapter remains to be seen.

And those are just the potential criminal charges. Trump has broad civil exposure as well. Recall, for example, that New York Attorney General Letitia James has a pending fraud suit against Trump, plus E. Jean Carroll’s defamation case against the former president, which his recently released deposition testimony shows may not be going well for him. 

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