(The Hill) — The expected indictment of Donald Trump is looming over the midterm elections as both parties are preparing for a major battle after Election Day if Attorney General Merrick Garland moves forward with an unprecedented prosecution of a former president.
Republican lawmakers in both the Senate and the House are warning they will put up a staunch defense of Trump if the Department of Justice announces an indictment, which some GOP aides and strategists expect to come in the first 60 to 90 days after Election Day.
Sen. Ted Cruz (R-Texas), a member of the Senate Judiciary Committee, is already warning that GOP lawmakers could use their power of the purse to reign in the Justice Department if prosecutors indict Trump, which he says would be using law enforcement authority as a political weapon.
“If Biden treats the Department of Justice as partisan stormtroopers, then Congress is justified in using whatever tools Congress has to stop that abuse of power,” Cruz told The Hill in an interview when asked about the possibility of holding up Justice Department funding.
If an indictment of Trump does come before mid-December, Justice Department funding likely would become a political football as congressional leaders work to pass legislation to fund the government for the next year.
Cruz, who has a new book out, “Justice Corrupted: How the Left Weaponized the Legal System,” says any indictment of Trump would serve as more evidence that the Justice Department has let partisan politics dictate its decision-making.
He believes the Justice Department will announce an indictment of Trump at around the same time it announces charges against Hunter Biden, the president’s son, in an effort to show that it is acting in an even-handed way.
“The Biden White House wants to indict Donald Trump and they want to put whatever fig leaf in front of them they can to make it appear slightly less partisan,” Cruz said, pointing to what he called a series of “coordinated” leaks to lay the groundwork for an indictment.
Sensitive to Republican accusations that the Justice Department is driven by partisan politics, senior Justice Department officials have discussed the possibility of appointing a special prosecutor to handle the investigations and any possible indictment of the former president.
Sen. Ron Johnson (R-Wis.), who would become chairman of the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations if he wins reelection and Republicans win control of the Senate, says one of his top priorities will be to investigate what his spokeswoman called the “corruption and politicization of federal law enforcement and our intelligence agencies.”
Johnson last month proposed setting up a select congressional committee similar to the Senate’s Church Committee established in 1975 to investigate whether the CIA spied on anti-war protesters.
Rep. Jim Jordan (R-Ohio), who is expected to take over as chairman of the House Judiciary Committee if Republicans capture the House, plans to investigate the Justice Department’s search of Trump’s Mar-a-Lago home for classified documents.
House Judiciary Committee Republicans on Friday released a 1,000-page report detailing what they called “a rampant culture of unaccountability, manipulation and abuse at the highest level” at the Department of Justice and FBI.
Reports circulated on Friday that Trump could announce a reelection bid as soon as Nov. 14.
He’d be the instant front-runner in the Republican presidential primary field and Senate GOP aides predict the party’s conservative base would quickly rally to his defense against any criminal charges brought by the Justice Department.
An early Trump bid could also be interpreted as a warning shot at Justice that any indictment of him as he runs for the White House would be political.
Some think their party has a better chance of retaking the White House with a different standard-bearer. But few of these Republicans are likely to back an indictment.
Former Sen. Judd Gregg (R-N.H.), who served as a counselor to Senate Minority Leader Mitch McConnell’s (R-Ky.) leadership team during his time in the Senate, said the Republican backlash to an indictment against Trump will be “massive” and “overwhelming.”
“Even people like myself who have no use for Donald Trump and think he’s been very unfortunate for our party and that his treatment of our electoral process has undermined our democratic process would find it extremely difficult to tolerate an indictment of a former president,” he said. “There would have to be just incredible grounds of knowing violations that created serious national security problems. I just don’t suspect that’s the case.”
Gregg conceded that “no one knows” outside Trump’s inner orbit, the Justice Department and intelligence agencies just what kind of damage Trump may have caused to national security by keeping classified documents at his estate but warned “indicting a former president is a complete breakdown, in my opinion, of the structure of our government which is built on some level of tolerance of political activity.”
Gregg said Garland should expect a fight over funding for his department if he indicts Trump and Republicans win control of one or both chambers of Congress.
“You would have a constitutional issue of immense proportions because the Congress would, I assume, assert its right to discipline the administration or the attorney general through the purse and maybe in other ways,” he said. “We don’t need that as a country.”
A Senate Republican aide said GOP lawmakers are closely following the moves of the Justice Department, and that an indictment could strengthen Trump politically. “Everyone rallied around him again” after the Mar-a-Lago raid, the aide noted.
Democrats say Garland will face calls for his resignation if federal prosecutors decide to not prosecute Trump for holding sensitive classified documents at his estate at Mar-a-Lago, which they view as a clear violation of the law and a straightforward case to argue in court.
“If he ultimately determines to not bring charges against Trump, somebody will call for him to step down,” said Ray Zaccaro, a Democratic strategist and former Senate aide.
Zaccaro argued that Trump’s possession of classified documents at Mar-a-Lago broke the law and that the crime happened after he left office. He also noted that while no former U.S. president has been indicted on criminal charges, it has happened in other countries.
Democratic members of the House Select Jan. 6 committee vented frustration earlier this year over the Department of Justice being slow to pursue contempt charges with members of Trump’s inner circle who refused to cooperate with the panel.
Rep. Elaine Luria (D-Va.) bluntly called on Garland in March to “Do Your Job” after the Justice Department was slow in supporting the subpoenas of the Jan. 6 Committee.
The backlash will be more intense after Election Day if Garland doesn’t act to enforce the law prohibiting the private possession of highly classified documents, such as a document describing Iran’s missile program, which the FBI seized at Mar-a-Lago.
Republicans and Democrats who expect the Justice Department to indict Trump believe it will bring charges against the former president for holding classified national security-related documents at Mar-a-Lago, instead of trying to prosecute him for inciting the Jan. 6, 2021, attack on the Capitol.
Any prosecution of Trump related to Jan. 6 would be complicated by the fact that the Senate already tried and acquitted Trump on similar charges during his impeachment trial last year.
Republican and Democratic aides acknowledge that any prosecution of Trump will plunge the Department of Justice into a political firestorm and make it more difficult for the Biden administration to work with Republicans, who are likely to control the House if not both chambers of Congress next year.
“If the Department of Justice does it, it will be a maelstrom. They’re obviously well aware of that but have to balance it with their duty to uphold and administer the law. It’s pretty clear that Merrick Garland is not relishing this,” said a Senate Democratic aide who requested anonymity to discuss Trump’s possible indictment, a sensitive topic on Capitol Hill.
The aide said it’s clear that Trump violated the law but cautioned that doesn’t necessarily mean Garland will bring an indictment.
If the attorney general fails to act, “there are going to be some Democrats who are going to complain vociferously,” the source said but acknowledged “there are a lot of Democrats who recognize that Garland’s got no good options here” because he will come under strong criticism no matter what he decides to do.
“Whatever happens on Tuesday will inform his decision but not make it easier,” the aide said, making reference to Election Day, which will be a referendum on Biden but also Trump, whom Democrats have tried to tie to Senate and House GOP candidates.
Emily Brooks contributed to this report.