ARI SHAPIRO, HOST:
The man who denied the results of the last presidential election says he'll be a candidate in the next one.
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DONALD TRUMP: America's comeback starts right now.
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SHAPIRO: Two years ago, Donald Trump rallied supporters to overturn democracy, launching a deadly riot at the U.S. Capitol. And that is only part of the reason he is being investigated at the state and federal level. There are also investigations into top-secret documents that he kept at Mar-a-Lago, a criminal tax fraud trial in New York, investigations into the Trump Organization and his personal finances - the list goes on. So does his newly launched 2024 campaign have any impact on these cases? Former U.S. attorney Barb McQuade is a professor at University of Michigan Law School. Good to have you back.
BARBARA MCQUADE: Thanks, Ari. Great to be with you.
SHAPIRO: Is there any legal prohibition against an investigation of a presidential candidate?
MCQUADE: There is not. So I don't think there's any legal consequence here. There is nothing that says you can't investigate someone running for president. Hillary Clinton, for example, was investigated while she was a candidate for president. So legally, no bar. Now, politically, I think there may be some strategic advantage to be gained by announcing before any charges are filed.
SHAPIRO: Let's talk about the politics of this because we know of two federal investigations involving the president, into Mar-a-Lago and the insurrection. And Attorney General Merrick Garland has said, prior to Trump's announcement, that prosecutors will follow the evidence wherever it leads. Here he was speaking to reporters in July.
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MERRICK GARLAND: No person is above the law in this country. Nothing stops us.
UNIDENTIFIED PERSON: Even a former president?
GARLAND: No - I don't know how to - maybe I'll say that again. No person is above the law in this country. I can't say it any more clearly than that.
SHAPIRO: But since President Biden oversees the Justice Department, which is supposed to stand apart from politics, Barb McQuade, is there a political problem with the Biden DOJ investigating Biden's opponent?
MCQUADE: Well, there is this, you know, special counsel provision that allows the Justice Department to appoint a special counsel when there is a conflict of interest by the Justice Department or some other factor that might cause the public to question the independence of the Justice Department. There's not a requirement that a special counsel be appointed, but it is a discretionary call, and there are certain things that an attorney general needs to think about. And so when you have someone - if you're investigating your boss, for example - when the Justice Department was investigating Donald Trump himself, the sitting president, that's certainly a conflict of interest because he can fire you or he can stop the investigation if he wants to. And so that's the kind of place where a special counsel, I think, has some merit.
But in a case like this, we're getting, you know, really quite remote. One, Joe Biden is not a declared candidate yet, though I suppose most of us can assume he will be. Donald Trump is a candidate for the Republican primary. It's not clear whether he will even oppose Joe Biden in that election.
SHAPIRO: Yeah.
MCQUADE: And we're two years away from that, with an investigation that's been ongoing for almost two years already. So I'd be surprised if, ultimately, a special counsel is appointed here.
SHAPIRO: All right. So that's at the Justice Department. But then there are these state investigations in New York and Georgia. Do you think there are any implications for those cases?
MCQUADE: Again, not legally. I think that Fani Willis will proceed with her grand jury investigation exactly as she has stated that she would all along. I think Letitia James in New York is well on her way. She's already filed the complaint there back in January, so I think that case will proceed. But again, politically, I think it gives Donald Trump the talking point that he loves so much - that he's the victim, that this is a witch hunt. I announced for - my campaign for presidency, and all of a sudden, I'm charged in Georgia, or I'm charged in the federal system. So I think, politically, it is a way to frame himself as somebody who has been victimized, attacked for partisan political reasons. I suppose that could carry some weight with a jury, but I don't think it is going to with judges or attorneys general.
SHAPIRO: And so it sounds like you give some weight to the argument that Trump may have announced his candidacy earlier than normal in order to maybe gain some, if not legal protection, then at least talking points on these investigations.
MCQUADE: Yeah. You never know exactly what motivates someone to do something - particularly Donald Trump - but it certainly has that advantage. You know, among other things, he can go out and raise money. He seems to relish campaigning even more than governing. And so he gets to go out and have rallies, and people can come, and they can rally toward his cause. But it does have that additional benefit, Ari...
SHAPIRO: All right.
MCQUADE: ...That he can use this talking point to say, they're out to get me. It's a hoax. It's a partisan witch hunt.
SHAPIRO: Former U.S. Attorney Barb McQuade, thanks a lot.
MCQUADE: Thank you, Ari. Transcript provided by NPR, Copyright NPR.
