Thread by @renato_mariotti

THREAD: Has the Justice Department opened a criminal investigation into Donald Trump? Does it matter?

1/ Yesterday the Washington Post reported that DOJ is "investigating President Donald Trump's actions as part of its criminal probe of efforts to overturn the 2020 election results."

This important news has generated significant discussion and debate. washingtonpost.com/national-secur…

2/ The report was very significant news, but the Post's carefully-chosen language has raised questions.

Specifically, the Post said that DOJ is investigating "President Donald Trump's actions" but did not say whether Trump himself was under investigation.

A New York Times article that confirmed the Post's reporting also used carefully worded language, stating only that federal prosecutors had "directly asked witnesses" about Trump's "involvement in efforts to reverse his election loss." nytimes.com/2022/07/26/us/…

4/ Since those articles were published, I have been asked by journalists and other attorneys:

Does this mean that the Justice Department has formally opened an investigation into Trump? How can they investigate him if they haven't done so?

Good questions that I'll answer here.

5/ As a starting point, the Post and the Times were wise to choose their words carefully. The fact that prosecutors are investigating a person's actions as part of a criminal investigation does not necessarily mean that a criminal investigation of that person has been opened.

6/ When a criminal case is opened at DOJ, it is typical (but not required) for certain individuals to be identified as subjects of the investigation when the case is initiated.

But cases often expand beyond the initial people identified when the case was opened.

7/ For example, an investigation might be opened into a single sale of heroin. The investigation could determine that the seller of heroin was actually part of a large narcotics trafficking organization.

It is not uncommon for a case to quickly expand to new crimes and people.

8/Typically new criminal cases are not opened every time the facts reveal a new facet or aspect of the criminal activity.

When I was a federal prosecutor, white-collar crimes I investigated often looked very different at the charging stage than they did at the very beginning.

9/ So what can we infer from recent news reports?

At least two things:

First, that DOJ believes that the "fake elector" scheme constitutes a crime and they are investigating that crime.

Second, that their investigation includes Trump's actions as part of that scheme.

10/ For all practical purposes, that means that Donald Trump is under investigation.

In my current role, as a defense attorney, I am asked to evaluate whether clients have potential liability based on limited information we have regarding governmental investigations.

11/ If a client came to me and told me that the DOJ believed that a scheme he was involved in was a potential crime, and that they were looking at his activity in connection with that scheme, I would tell him he was under criminal investigation and that he should act accordingly.

12/ Whether a formal case was open in his name is really irrelevant.

So is there a case open in Trump's name? We don't know. I presume that, given the nature of this case, DOJ would open one prior to charging Trump, if they do so.

But it doesn't really matter right now.

13/ Yesterday's news was important because, until these recent reports, it was unclear whether the DOJ was investigating Trump directly.

As the Times noted yesterday, DOJ was "reluctant even to concede that his role was discussed in senior leadership meetings at the department."

14/ Now, if the recent reports are accurate -- and they appear to be, given that Pence Chief of Staff Marc Short and Pence chief counsel Greg Jacob testified before the grand jury -- it is apparent that Trump is under criminal investigation.

That's big news. /end