Why wasn’t Donald Trump charged in Arizona’s 2020 election-related prosecution?
When the indictment came down in April, I noted some possible reasons while emphasizing that “we don’t know exactly what happened in the grand jury and what grand jurors thought of any potential charges against the former president.”
We now have some insight into the state of grand jurors’ thinking: Apparently, they were interested in charging the former president. But the state wasn’t.
That revelation comes in a court filing by state prosecutors this week. Responding to the defense claim that the charges are politically biased, Arizona Attorney General Kris Mayes’ office noted that it asked the grand jury not to charge several Republicans, including Trump. Explaining why, the prosecution cited the U.S. Justice Department’s policy regarding overlapping charges by federal and state prosecutors. The filing excerpted the following remarks by a prosecutor to the grand jury:
Our time was — you know, this was an extension. It was limited. If we had a year or two together maybe that would change. I have a clear insight from who you would like to investigate, and it — and I am respectful or your authority to direct the investigation. When you consider — and then I mentioned this before — indicting somebody, even the president, is — is a big deal — even if I was to dismiss it because I don’t know if I have all the evidence to prosecute it at this moment. I think you should weigh this policy heavily. And that would be — that is why I have not recommended that in the draft indictment, despite clear indications from you all that there’s an interest in pursuing a charge against him. I am — I am happy to have — to answer any questions. But that — that is — that is my analysis. That’s why you do not see that. And I know that may be disappointing to some of you. I understand. But it’s — you — I’ve heard you say today, [w]e worked up the other way because of this policy, and that’s where we’re at.
So, what is this DOJ policy, exactly? Known as the “Petite Policy,” it “establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.”
Notably, that’s not the situation here. That is, it’s not a question of a federal prosecution following a prior state or federal one, but rather a state prosecution following a federal one. And of course, this is guidance for federal prosecutors, not for state prosecutors generally (or Arizona in particular), though it instructs federal prosecutors to consult with their state counterparts “to determine the most appropriate single forum in which to proceed to satisfy the substantial federal and state interests involved, and, if possible, to resolve all criminal liability for the acts in question.”
And while Trump has been charged federally by special counsel Jack Smith, he was also charged in the related state case in Georgia. Clearly, federal policy didn’t prevent Fulton County District Attorney Fani Willis from bringing that indictment. The fate of both of those cases is uncertain, however, due to the Supreme Court immunity ruling’s possible implications for both prosecutions and, when it comes to the Georgia case, the pending pretrial defense challenge to disqualify Willis.
Just because Trump hasn’t been charged in Arizona doesn’t mean he won’t ever be. If he becomes president again, he’ll gain the power to crush his federal election interference case. To the extent that the existence of that federal case is what’s holding Arizona prosecutors back, its disappearance could change their calculus — though, in the hypothetical scenario in which Trump is re-elected, any prosecution proceeding against him would likely have to wait until he was out of office again to get going.
For now, though, as to why Trump wasn’t initially charged in Arizona, it wasn’t for lack of interest on the grand jury’s part.
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