At that point, Garland should have directed a team of investigators and prosecutors in the department to conduct a thorough investigation into Trump’s finances, and he should have encouraged local prosecutors in Manhattan to stand down. Based on the available public indicators, this did not happen — both Biden and Garland have appeared strongly disinclined to aggressively investigate Trump due to the potential political implications — but a decision to the contrary would not have been unusual or unprecedented.
We have a principle of dual sovereignty in this country — which means, on law enforcement matters, federal and local governments are largely free to proceed independently of one another — but in practice, and in order to conserve resources, prosecutors loosely coordinate their investigative work when the underlying conduct at issue might violate both federal and local law, as in the case of Trump and his businesses.
There are many cases that could be prosecuted by local law enforcement authorities that “go federal” — particularly large drug cases or complex financial frauds — and when that happens, the local prosecutors typically defer to the Justice Department with the understanding that the federal government will pursue criminal misconduct if there is conduct that warrants prosecution. The Manhattan U.S. Attorney’s Office in fact has a long reputation of poaching large cases and boxing out local prosecutors and investigators.
More rarely, both in New York and elsewhere, federal and local prosecutors will work together on “joint” investigations with the understanding that the federal government will take the lead and handle any prosecutions that may ultimately be warranted. This sort of arrangement can be fraught, particularly if the investigation is substantially conducted by local prosecutors and investigators, because their missteps can later imperil the federal prosecution. In fact, that happened under Vance’s tenure in 2020, when a high-profile federal prosecution of an alleged Iran sanctions violation that had begun as an investigation by the Manhattan DA collapsed in spectacular fashion due to misconduct that stemmed from the mishandling of evidence in Vance’s office — an episode that provided one of many reasons to question the proposition that the office could easily manage the considerable task of sorting through Trump’s complex business dealings and legal exposure.
Even putting aside questions of competence, there would have been some considerable advantages to a federal investigation of Trump’s finances. Federal law is generally more expansive in the area of financial fraud, and federal prosecutors have some potent procedural and investigative tools that local prosecutors do not. Also, while the Manhattan DA’s office had gone on for years by early 2021 — including a detour to the Supreme Court to obtain Trump’s tax returns — the office appears to have proceeded very slowly as an investigative matter, perhaps on the (eminently reasonable) theory that it would have been unwise to take more assertive or intrusive steps while Trump was the sitting president.
More importantly, given the serious legal questions about Trump’s financial dealings, a thorough, even-handed, and well-run federal investigation would have been the most orderly way to resolve Trump’s criminal exposure in this area. The Justice Department is our only nationally representative prosecutorial body. Compared to local prosecutors’ offices, the Justice Department is also more insulated from politics — both as a matter of fact and of broad public perception. As a result, the Justice Department is the best and least volatile way to impose criminal consequences on a former president if they are warranted — a notion that was, until Trump, largely academic.
Instead, Garland appears to have decided to let local prosecutors in New York and Georgia take the lead on investigations that are technically within their jurisdiction but that could and should have been federally led. Garland may have saved himself some political headaches, but in the process, he has tacitly given the green light to every local prosecutor in the country who might want to pursue a president after he or she leaves office — Republican or Democratic, including Biden himself.
It is not hard to see how this precedent could prove problematic in the future. A politically ambitious attorney general in, say, Texas or Florida could try to drum up a way to investigate Biden’s son Hunter, his business dealings and Biden’s own connection to them if prosecutors can identify some jurisdictional hook, however tenuous — something that could be as simple as a witness, a meeting or other communication, or a bank transaction in the state. Of course, an effort like this may very well have happened anyway, but Democrats will be hard pressed to object as a matter of principle or by appealing to the notion that local politicians and prosecutors should, as a general matter, not try to imprison our country’s former leaders.
As with much of Garland’s decision-making in the area of Trump, his choice to let the Manhattan investigation proceed unabated was calculated to avoid political controversy and disruption in the short term. But it discounted the long-term implications. It is bad enough that our country has a robust norm of presidential immunity at the federal level that effectively incentivizes malfeasance by failing to deter it. We now also seem to have a federal void when it comes to post-presidential investigation, which will be taken up by our country’s vast, messy and unpredictable local politics.