Published by The Lawfare Institute
in Cooperation With
Former President Donald Trump surrendered himself on Tuesday to authorities at Wilkie D. Ferguson, Jr. U.S. Courthouse in Miami, Florida, to face charges in the Mar-a-Lago classified documents case against him. Those charges are a culmination of years of serial investigations of Trump’s activities and transformed a former president into a defendant in federal court for the first time.
But when it comes to Trump, it’s never really a surrender. Each time the former president has faced accountability for his actions, he sings a tried-and-true refrain: There’s a witch hunt afoot. This time, he’s gone so far as to promise to appoint a special counsel to “go after” President Joe Biden and his family for apparently using the Justice Department to launch an attack against him and his, should he be reelected in 2024.
Many Republicans agree with this characterization that a weaponized criminal justice system has been deployed against the former president. Recent reporting points to this narrative as a reason why the specter of violence from Trump’s base as the 2024 election approaches is already concerning to some analysts. To some extent, the general public buys into this idea of a weaponized justice system: According to polling conducted after the first indictment was brought against him in New York, 76 percent of respondents saw the indictment as having been influenced by politics (even though 60 percent of those same respondents ultimately agreed with the decision to indict Trump).
There’s certainly something to Trump’s insistence that his conduct has been under constant legal and political scrutiny. From the Russia investigation in 2016 to the Mueller investigation in 2017; to the New York state investigation into hush money payments that began in 2017; to the first impeachment trial that began in 2019; to the second impeachment trial in 2021; to the Fulton County probe opened in 2021; to the Justice Department’s Jan. 6 probe opened that same year; to the Jan. 6 committee investigation that ended in 2022; to this most recent indictment from the Justice Department related to the Mar-a-Lago investigation, which opened in 2022—Trump’s forays in and out of the legal system are as expansive as the attention he’s captured as candidate, president, and private citizen.
But Trump’s “witch hunt” theory misses a crucial thing: his own conduct.
It’s not like Trump’s behavior is being questioned for no reason. He just keeps doing things that require investigation. He has done so sometimes in spite of, and sometimes with the help of, the advisers and attorneys surrounding him who are supposed to keep him out of trouble.
Many of the investigations against Trump address distinct allegations. Others, though, developed in a kind of dialogue with one another; that is, one investigation led to another. At other times, the relationship is subtler. They indirectly show patterns of Trump’s behavior—specifically, his propensity to obstruct investigations, tamper with witnesses, and otherwise block efforts of law enforcement. At other times still, similar issues spark the interest of different offices at the state and federal levels, reflecting American federalism in the form of a multiplicity of investigative interests in Trump.
Herein is a guide for the perplexed—a casual history of the Trump investigations and their interconnections. It is not designed to be complete. It’s designed, rather, to highlight the relationship between witch-hunting and witchcraft—that is, to show how, despite Trump’s insistence that the whole history is a witch hunt made up of a series of “hoaxes,” the hunters did often end up face-to-face with someone wearing a pointy hat casting spells over a toad.
In 2017, the Justice Department opened the first major investigation into Trump’s potential misconduct. Widely known as the Mueller investigation, it commenced a few months after Trump’s inauguration as president. The Mueller investigation grew out of an earlier Justice Department investigation that was opened to investigate not Trump, but Russia’s efforts to influence the 2016 election campaign more widely: Crossfire Hurricane. Members of Congress from both parties took the possibility of Russian election interference seriously and investigated, separate from Trump’s relationship to it.
The main question in Crossfire Hurricane was whether anyone associated with Trump’s campaign had conspired with Russian efforts to influence the election. The Justice Department opened the Mueller investigation when Trump abruptly fired the FBI director over his handling of Crossfire Hurricane.
It’s a tall order for the Justice Department, a part of the executive branch, to independently investigate its own sitting head. The department’s leadership thus appointed a special counsel to run the Russia probe: Robert Mueller, who had served as FBI director under presidents of both parties. Mueller was assigned to investigate the Trump campaign’s potential collusion with Russia, which involved Trump’s conduct prior to becoming president. The investigation ended without Mueller ever bringing a charge against Trump, although the special counsel successfully prosecuted several major figures in Trump’s orbit. And Mueller’s 448-page report—a redacted version of which the Justice Department published after much ado—shows deep connections between Trump’s presidential campaign and members of the Kremlin, the Russian private sector, and Russian oligarchs.
The Mueller investigation was not just about collusion, however. Mueller also conducted a wide-ranging investigation of whether Trump had obstructed justice with respect to both his probe and the FBI investigation that preceded it. That is: The investigation was expanded to consider whether Trump committed a crime while he and his family and campaign and associates were being investigated for having potentially committed collusion crimes. Especially if one believes that there was zero merit to the Russia allegations and buys the notion that the Mueller probe itself was a partisan vendetta, all Trump needed to have done was wait for the investigation to end and for the evidence not to support bringing charges against him. Instead, he tried to fire—and, in at least one case, succeeded in firing—the person investigating him, and he engaged in witness tampering on multiple occasions.
But Mueller didn’t ultimately bring obstruction charges either, or even state whether he believed the president had obstructed justice. He refused to render a judgment on the subject. Mueller’s puzzling final word on obstruction—that his non-indictment did not accuse Trump of crimes but did not exonerate him either—resulted from the Office of Legal Counsel’s view that a sitting president cannot be indicted and Mueller’s consequent view that he thus should not make an accusation against which no defense is possible.
At this juncture, it’s worth briefly acknowledging the work of Special Counsel John Durham, who was appointed by Trump Attorney General William Barr to investigate Mueller’s investigation of Trump in the apparent hope of uncovering wrongdoing by Mueller’s team. The report did not find a so-called deep state looking to catch Trump, as Republicans had alleged. It affirmed Mueller’s findings. But it also acknowledged that the FBI had some confirmation bias in its initial investigation and had made errors in securing a Foreign Intelligence Surveillance Act warrant against a former adviser to the Trump campaign. The FBI says it has since “implemented dozens of corrective actions.”
In 2018, before Mueller had released his famous report, then-Manhattan District Attorney Cyrus Vance started his own investigation into Trump’s potential criminal activity in New York City. These investigations contained a few threads, including the hush money payments made to adult film actress Stormy Daniels in advance of the 2016 election. (Why Vance never brought charges at the time was a widely asked question that he’s tried to address in recent interviews.) This is the case that District Attorney Alvin Bragg picked back up and for which he brought a 34-count state indictment against Trump in April—the indictment focusing on Trump’s alleged role in falsifying business records as he was trying to pay Daniels for her silence. So far, commentators have been split on the strength of the case and whether it should have been brought at the state or federal level (or even at all).
Barely a few months after the end of Mueller’s investigation, in the summer of 2019, Trump provoked a new investigation. This time, the triggering action involved a phone call between Trump and newly elected Ukrainian President Volodymyr Zelenskyy; in that call, Trump used his position as president to solicit the help of a foreign government, for his own domestic political purposes, to investigate his likely opponent for the presidency and thus influence the results of the 2020 election. The matter came to the public’s attention as a result of a whistleblower complaint, and the U.S. House of Representatives responded by opening an impeachment inquiry into the matter at the end of the same year.
Impeachments, in being conducted by the legislative branch and in not being criminal investigations conducted by the Justice Department, are more political in nature—and this is why there is debate about whether to call impeachment a political or legal function. Because of the more overtly political nature of the process, and because the impeachment came after Mueller’s non-prosecution, Republicans found it easy to brand the impeachment investigation as just another attempt to get Trump. It is true that some aspects of the Mueller investigation related to the Ukraine impeachment. And there was some discussion among House leaders at the time about including the obstruction allegations from the Mueller reporting in the impeachment charges. But the House ultimately didn’t do this, in part in a conscious effort not to obscure the new charges of abuse of power with the Mueller material from which Trump had claimed exoneration.
Trump was acquitted in the end. The outcome of this first impeachment, given the party composition of the Senate, the body that tried the matter and that fractured largely along party lines, was hardly a surprise. The acquittal, however, was not a good measure of the evidence presented against Trump, about which there really was not much factual dispute. The vote, rather, reflected the fact that Republicans—with the exception of Mitt Romney, who voted to convict—did not choose to act on the evidence.
This acquittal would mostly have marked the end of the Trump investigations (except in New York state), had Trump merely managed to accept the results of the 2020 election. Mueller was done. The impeachment had failed. The witch hunters had run out of gas and pulled over on the side of the road.
But then came the election, its aftermath, and the Capitol attack of Jan. 6, 2021—the culmination of Trump’s monthslong efforts in the lead-up to the counting of electoral votes to discredit the results of the 2020 election. And the car suddenly kicked into gear—powered once again by Trump’s misconduct.
Congress reacted immediately, opening a second impeachment case on allegations of incitement to insurrection one week after the events of Jan. 6. Here, Congress investigated an attack against itself—and members had firsthand evidence of both the attack and Trump’s role in it, including his tweets in the lead-up to Jan. 6, his remarks on the Ellipse, and his tweets on the day of attack.
The expiration of Trump’s presidency made the execution of the impeachment trial in the Senate a bit of an afterthought. And it ultimately provided a number of Senate Republicans a new basis for voting against his conviction. This time, some additional Republicans flipped: Richard Burr, Bill Cassidy, Susan Collins, and Lisa Murkowski joined Romney in voting to convict. And once again, there was little doubt about what had happened. Yet once again, the votes were simply not there to convict.
The acquittal, however, answered only certain political questions. It did not answer criminal questions. And it did not answer the broad question of how Jan. 6 had come to happen. So other actors picked up the baton. The House of Representatives launched the select committee to investigate the attack in the summer of 2021 as a way of assigning responsibility for the disaster—and it inevitably focused on Trump’s central role. Trump lovingly called it the Unselect Committee on Truth Social. The initial impeachment trial turned out to contain giant fact-finding gaps, in part because of time constraints and it part because it didn’t have the ability to compel the production of documents. Over the course of the next 18 months, the select committee aimed to fill those gaps.
Indeed, the Jan. 6 committee, whose work concluded at the end of 2022, has shown that the book was rightly not closed with the second impeachment. The committee’s efforts, which involved the interviewing of numerous witnesses from within the Trump White House and also from within the violent rally, has painted a compelling picture of Trump’s complicity in the events that unfolded that day in January. From his creation of the “Big Lie” that motivated rioters to travel to the nation’s Capitol months before Jan. 6, to the strategy he crafted for creating fake electors prior to the election, to his actions while the insurrection itself was unfolding, the evidence is stark.
And Trump responded, as one might have predicted from reading the Mueller report. There were some classic Trump moves while the committee was conducting its work: potential witness tampering, encouraging non-cooperation with the investigative process, and vituperative attacks on those investigating him.
The Justice Department also launched a major investigation. While this probe clearly involves an examination of Trump’s actions, it is also a bigger probe that focuses both on other political actors and, separately, on the hundreds of rioters themselves. The successful prosecution of lower-level actors on Jan. 6—specifically, many of the Proud Boys and the Oath Keepers—highlights the Justice Department’s focus on the broader movement, not just Trump alone. Indeed, the department has so far indicted nobody for Jan. 6-related matters other than people at the street level.
Fulton County District Attorney Fani Willis also opened an investigation into Trump’s potential criminal actions following the election—at least those that implicated the count in Georgia. The investigation stemmed from Trump’s recorded call with Georgia Secretary of State Brad Raffensperger, in which he urged Raffensperger to find him votes that did not exist. But it also involves the use of fake electors in the state and other conduct. This investigation is not about Trump alone, though he is clearly a focus. It likely has some overlap with the Justice Department’s Jan. 6 case but is necessarily confined to activity within Georgia, whereas the federal investigation has a national scope.
Even in the aftermath of Jan. 6, though Trump was out of office, he wasn’t done triggering federal investigations. His decision to transfer apparently pilfered classified documents from the White House to Mar-a-Lago—along with his subsequent alleged attempts to obstruct the government’s attempts to recoup them—produced yet another investigation. The indictment brought by Special Counsel Jack Smith last week says that Trump violated the Espionage Act by retaining classified documents at the unauthorized location that is his Mar-a-Lago residence, that he showed them to unauthorized persons—all while apparently knowing that he wasn’t authorized to do so—and that he schemed with his valet to prevent the FBI from getting them back. Some of Trump’s supporters have opined that the case has been overcharged, particularly in comparison to the treatment of Hillary Clinton by the FBI seven years ago. But it’s impossible to imagine that the FBI wouldn’t have investigated whether Trump violated any laws in hoarding those many classified documents in such a defiant fashion.
Looking back at the connective tissue between the many investigations and cases involving Trump—past, present, and likely to come—paints a picture of an individual constantly under investigative scrutiny over many years. And it’s easy to understand how Trump has been able to convince many people that his enemies hate him to such a degree that they will go to any lengths to nail him with something. The picture also reveals that many hands within the U.S. government—state prosecutors, federal prosecutors, legislators, and other members of the executive branch—have at different times carried the baton in the investigations of Trump.
But ultimately, the explanation for the constellation of cases surrounding the former president is not pathology or witch-hunting on the part of the investigators. It is, rather, serial behavior on his part and a habit of seeking to prevent investigators from learning the truth that has legitimately required the investigation of, and indictments for, one destructive decision after another.