WASHINGTON — Friday began with Donald Trump’s legal troubles in the spotlight, as a federal judge in one of his three criminal cases warned him about speaking out about sensitive evidence, even on the campaign trail.
But by midday, a surprise announcement from Attorney General Merrick Garland shifted attention to Hunter Biden. Garland elevated David Weiss, the US attorney investigating the president’s son, to special counsel status, just as prosecutors disclosed that a plea deal with him had collapsed and they instead would take their case against the younger Biden to trial.
At the center of both rapid-fire developments were prosecutions by the Justice Department, underscoring how much a government agency designed to be unmoved by politics will be deeply enmeshed in the 2024 presidential campaign —and in some instances, dictate it.
Amid mounting legal troubles for Trump, the GOP front-runner, and the news that those of the incumbent president’s son have intensified, the road to the White House for the first time will detour through the courthouse.
“The fact that we could have trials of both Hunter Biden and Donald Trump is going to obscure everything else that happens in the campaign,” said Brad Bannon, who heads a political polling and consulting firm that works for Democratic candidates. “It’s going to be difficult to talk about substantive issues for the candidates. This is going to be one big legal circus, and I don’t think that’s good for the nation.”
The conflict was on US District Judge Tanya S. Chutkan’s mind as she ruled that Trump would be restricted in what he could say about the case before her, telling him and his attorneys, according to The New York Times, “to take special care in your public statements.”
“The fact that he is running a political campaign currently has to yield to the administration of justice,” Chutkan said of Trump during Friday’s hearing on his charges of trying to overturn the 2020 election. “If that means he can’t say exactly what he wants to say in a political speech, that is just how it’s going to have to be.”
It’s a position that neither the Justice Department nor the candidates would choose to be in. Prosecutors usually try to avoid any appearance of influencing elections, but can’t do so this cycle. Meanwhile the two front-running candidates, Trump and President Biden, will face the prospect of trials that could heavily influence their standing in the public eye during the heat of campaign season.
“We find ourselves with a number of indictments and potential charges now that really does thrust the DOJ into the middle of the political season, and I think puts them squarely in the crosshairs of the upcoming presidential election in a way that we’ve never seen before,” said Robert Mintz, a former federal prosecutor who is now in private practice.
The hearing in the former president’s case on Friday came in what has been his third set of charges since the beginning of the year: two sets brought by Trump special counsel Jack Smith and one indictment by the Manhattan district attorney. Two of the trials are set for spring, but Chutkan indicated Friday she would consider an accelerated timeline for this trial if Trump forces the issue through ill-advised public statements. Trump is expected to face a fourth set of charges from a district attorney in Georgia, also for actions related to the 2020 election.
Hunter Biden has long been a target of Republicans, who have alleged he engaged in various nefarious activities. But the Justice Department has specifically charged him with tax crimes and also could charge him with gun possession as a drug user. He was set to plead guilty and avoid jail time, but the plea deal fell apart when a judge questioned if it would mean no further charges on any topic. Biden’s legal team thought it would, but the Justice Department balked. On Friday, Weiss signaled that he could bring new charges against Hunter Biden and go to trial.
Meanwhile, Smith’s team is asking for the trial in the case involving Trump’s attempt to hold onto power to begin Jan 2, 2024, just weeks before the primaries kick off with the Iowa caucuses. The classified documents case is scheduled to begin next May in Florida, at a time when Trump, if he emerges victorious in the early states, might prefer to be shifting gears to the general election. A third trial, on charges in New York state court that he illegally paid hush money to a porn star during his 2016 presidential campaign, is set to begin in March.
That schedule could make it harder for Trump to campaign in crucial stretches of election season. The legal proceedings could also put restrictions on his speech and conduct, as Chutkan warned Friday.
While any trial for Hunter Biden won’t directly affect President Biden’s schedule, it would likely receive considerable media attention and could potentially shape public perception of the president.
Normally, Mintz said, federal prosecutors try not to bring indictments involving political candidates within a certain number of days of an election — a practice widely known as the 60-day rule — to avoid the appearance of political favoritism. But Trump’s and Hunter Biden’s actions and the long campaign season have made overlap unavoidable.
That has opened the Justice Department up to political attacks, which worries Sarah Krissoff, a former assistant US attorney who now is a defense attorney at a New York firm.
“The intersection between the election and these criminal prosecutions is going to undermine, if it hasn’t already, the public’s faith in the DOJ and the institutions around it,” she said. “It has, I think, a delegitimizing effect in the eyes of the public, which is concerning as a citizen.”
Bannon hopes the Hunter Biden case could have the opposite effect. The appointment of the Biden special counsel could defuse Republican claims that Justice officials have not equally scrutinized Trump and Hunter Biden. Although it could result in a trial that sends Hunter Biden to jail, a prosecution by a special counsel who Trump originally appointed as US attorney sends a message to voters that there’s no political interference, Bannon said.
“The reality is it may be bad for the Biden family, but it’s good for President Biden running for reelection,” Bannon said.
But the Justice Department has already become a central villain in the Republican presidential primary, and Friday’s news only fueled the flames. Candidates frequently complained about the “sweetheart” plea deal Hunter Biden had reached with Weiss to settle misdemeanor tax charges and a separate gun charge before it suddenly fell apart last month. Now, despite Republicans previously demanding a special counsel in the matter, they’re calling this appointment a sham.
Trump has deployed his complaints about Justice Department officials to stoke the grievances that animate much of his base.
“Crooked Joe Biden has weaponized law enforcement … and ordered his top political opponent, me, arrested,” Trump complained this week at a campaign rally in Windham, N.H.
Republicans jumped Friday to depict Weiss, and Garland’s decision to ramp up his status, as untrustworthy — even without evidence. Even former UN ambassador Nikki Haley, who has warned her party that Trump’s ongoing legal troubles could bog it down in 2024, saw Friday’s announcement as an opportunity to impugn the department.
“I don’t think the American people trust the Department of Justice,” she said.
Meanwhile, few of his challengers have attacked Trump over his legal troubles. And that leaves the Justice Department in an unenviable position, Mintz said.
“We have the unprecedented situation in which a sitting president has a Department of Justice that has brought through a special counsel indictments against the individual who may be the nominee of the opposing party, it really does put the [department] in a very uncomfortable situation,” he said.