A strange and volatile early stage of the 2024 presidential race has already begun, where investigations in Atlanta and Washington D.C. into former President Donald Trump are set to upstage his campaign rallies in Iowa and New Hampshire.
Welcome to the prosecution primary, where Trump’s legal threats are moving faster than the political calendar.
The biggest action of the next few months won’t take place on the campaign trail, but in the hushed conference rooms of District Attorneys and the Department of Justice, where prosecutors will decide whether to indict the former president. Three separate groups of prosecutors are preparing to make charging determinations within the next few months, ahead of next year’s GOP primaries. Many independent legal experts now think Trump’s indictment looks like a matter of time—including some who were once highly skeptical Trump would ever be charged.
That means law enforcement officials in Washington D.C., Atlanta, and Manhattan are primed to have an outsized, early influence in the race.
If Trump is indicted in the first half of 2023, a criminal trial could start before the end of this year, or in the first half of 2024. The resulting possible scenarios seem outlandish to even consider: Will we see a Trump mug shot this summer? If Trump is released on bond, will he do presidential debates wearing an ankle monitor? If he is charged, and refuses to abandon his campaign, will he finally succeed in splitting the GOP?
And, perhaps most importantly: Would criminal charges actually hurt Trump’s chances at winning the GOP nomination, or will his ride-or-die supporters stick with him?
In the prosecution primary, it’s Trump vs the law, with no historical precedent for what follows.
The Next Stage
Prosecutors eyeing Trump show every sign of making decisions soon, legal experts say.
In Georgia, Fulton County District Attorney Fani Willis said in late January that charging decisions are “imminent” in her long-running probe of Trump and his allies’ attempts to flip his 2020 defeat into a victory. A special purpose grand jury has already delivered a report to Willis recommending charges against over a dozen people, including famous names and “potentially” Trump, according to the foreperson of the jury, Emily Kohrs.
In Washington D.C., Special Counsel Jack Smith reportedly aims to wrap up his investigations of Trump by this summer, according to sources who spoke to the New York Times. Smith has already subpoenaed high-profile targets like former Vice President Mike Pence and Trump’s family-members-and-ex-White-House-advisors, Jared Kushner and Ivanka Trump. Filing subpoenas for those big names suggests both that Smith is close to the end of his probe and also that he’s serious about bringing a criminal case, according to former prosecutors and legal experts.
Smith is investigating Trump’s attempts to stay in power despite losing the 2020 election, and whether Trump broke the law by stashing sensitive government documents at his private Mar-a-Lago club in Palm Beach, Florida.
In Manhattan, District Attorney Alvin Bragg has re-upped a years-old probe into payments related to Trump’s alleged sexual affair with adult film star Stormy Daniels. Those payouts were intended to stop Daniels from telling the press she had an affair with Trump before the 2016 election, a claim that Trump has repeatedly labeled a fabrication.
Trump has denied any wrongdoing, and calls all the probes into his conduct part of a “witch hunt.”
But any of these probes could soon erupt into the first prosecution of a former president in U.S. history. Or, in a bizarre, legal cataclysm, he could become ensnared in all three, at the same time—in the middle of running for president.
There was a time when being charged with a felony would have blocked any candidate’s path to the White House, but Trump’s proven ability to survive endless scandals debunked the idea that a criminal indictment would derail his campaign.
There’s no legal reason why Trump would have to step aside after receiving an indictment, or even if he’s later convicted at trial and sentenced to prison. The Constitution gives only three criteria for winning the presidency—you must be at least 35 years old, a natural-born citizen, and a resident in the U.S. for 14 years. Technically, Trump could even win the presidency from inside prison.
In 2016, Trump proclaimed during the 2016 GOP primaries that he “could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.” Though he didn’t go that far, Republican primary voters shrugged off his litany of lies and legal liabilities during the 2016 primaries, from a lengthy list of sexual assault allegations to the $25 million settlement of a fraud lawsuit over Trump University. Every time he got in trouble during the general election, the response was a collective “but her emails” about Hillary Clinton’s own scandal. Republican voters—and enough independents—simply didn’t care about Trump’s immense legal baggage.
That only got more true during his presidency.
“When he’s held accountable, it can be a motivator for his base,” Norm Eisen, who served as co-counsel for the House Judiciary Committee during the first impeachment and trial of President Donald Trump in 2020, told VICE News.
Only about 10% of Republicans supported Trump’s first impeachment, for threatening to withhold defensive weapons from Ukraine unless its leaders dug up dirt on President Joe Biden. After the Capitol riot on Jan. 6, 2021, there was a brief dip in GOP support for Trump—but they rallied against his second impeachment in early 2021 and bear-hugged his claims the election had been stolen from him afterwards.
“We actually saw his popularity rise with his core supporters at certain points during the impeachment,” Eisen told VICE News.
During the midterms in 2022, Republican voters overwhelmingly backed Trump’s election-denying nominees for office—while booting out almost every GOP member of Congress who backed Trump’s second impeachment.
And the FBI’s Mar-a-Lago raid last summer actually boosted Trump’s support among Republican voters, according to polls.
He’s shown that he can effectively rally his base against law enforcement officials by casting their probes as pure politics.
The former president has already spent months painting the prosecutors who are now poised to indict him as bogeymen to his rightwing base. Willis—a Black woman, Democrat, and daughter of a Black Panther—hails from liberal Atlanta, a city Trump and Republicans love to hate.
And Republicans’ contempt for Atlanta is nothing like their loathing for New York City, where Bragg, who is also Black, already secured a conviction for criminal tax fraud against Trump’s company last year.
Trump spent his entire presidency convincing his supporters that the FBI is part of the “deep state” that’s out to get him, priming them to see any prosecution as a politically motivated witch hunt. And he’s started to do the same with his current foes.
“These prosecutors are vicious, horrible people. They’re racists and they’re very sick, they’re mentally sick,” Trump told a rally last year, before adding: “In reality, they’re not after me. They’re after you.”
“His base is conditioned to believe that any legal action against him is from the nefarious ‘Deep State,’” said Rick Wilson, an anti-Trump Republican strategist who cofounded the Lincoln Project.
“They’re going to say ‘they’re just doing this to get Trump,’” Wilson told VICE News. “The base will look at it as a badge of honor. They will not respond the way ordinary voters would have responded at any point in our prior history.”
But while a large number of Republicans seem fine with Trump breaking rules, they don’t like to lose—which could point to Trump’s actual weakness if he gets charged. The biggest polling dip in Trump’s support in years came right after his slate of candidates got walloped in the 2022 midterms.
And that points to a different kind of vulnerability: Trump’s legal troubles can and have actually hurt him and his party with swing voters, costing them general elections. And Republican primary voters do care about electability.
Past events prove that criminal behavior isn’t a dealbreaker for Republican voters. But if Trump’s legal troubles get bad enough in 2024, his primary opponents may have an opening to argue he’s a loser who blew it in 2020, hurt them in 2018 and 2022, and whose baggage could sink them in 2024, too.
That might be an actual drag on his chances at the GOP nomination—and his chances of returning to the White House.