Will The FBI Arrest Trump Before the Midterms?

The unprecedented FBI raid at former President Donald Trump's Mar-a-Lago residence has left many Americans on the edge of their seats as they continue to speculate on how quickly the Justice Department's probe is moving and whether a charge against a former president may be on the horizon.

With less than a month until the midterm elections, charging Trump would break with a longstanding DOJ policy that prohibits prosecutors from taking investigative steps or filing charges within 60 days of an election that could influence the outcome of a race. However, the DOJ has come under fierce criticism for its handling of Trump's case as it faces a potential decision on whether to charge Trump in proximity to the midterms.

Although Trump's name won't be on the ballot in November, he has backed more than 460 candidates this election cycle, and his endorsement record saw a 92 percent success rate during the primaries. The so-called "60-day rule" also puts the last day for a potential charge at September 10, which has already passed.

At the same time, the delay caused by Trump's request for a special master has also set back the DOJ's timeline. Former prosecutor Shanlon Wu told Newsweek that because the DOJ only just retrieved the classified documents back—due to Trump's legal tactics and U.S. District Court Judge Aileen Cannon's ruling—it "seems highly unlikely" that a charge could happen within the next month.

Trump FBI Arrest Prosecutors
Former President Donald Trump speaks during a Save America rally on October 1 in Warren, Michigan. Former prosecutors told Newsweek it "seems highly unlikely" that prosecutors would move against Trump before the midterm elections. Emily Elconin/Stringer

Cannon, a Trump appointee, has been widely criticized in legal circles for repeatedly siding with Trump in the fight over the documents seized from the former president's Florida home during the August 8 raid.

Cannon not only granted Trump's request for a special master but also extended the timeline for the document review, stretching the matter into mid-December and likely into the new year. A federal appeals court has already sharply rejected one of Cannon's decisions, overriding her refusal to restore the DOJ's access to about 100 documents with national-security classification marks.

Former federal prosecutor and state attorney Michael McAuliffe agreed with Wu that the chances Trump would be arrested before the November 8 election are "close to zero."

McAuliffe told Newsweek that along with the main DOJ probe being delayed, another four ongoing investigations into Trump are also nowhere near the final charging stage.

Apart from the federal probe, Trump is also being investigated by the Manhattan District Attorney's Office, the U.S. District Attorney's Office for the Southern District of New York, the U.S. Attorney's Office for the District of Columbia and the Fulton County District Attorney's Office in Georgia.

The Manhattan DA has opened up a criminal probe into the Trump Organization's alleged tax fraud, while New York Attorney General Letitia James has filed a $125 million civil lawsuit against Trump's company over the valuation of its business assets. Trump has also become the target of Fulton County DA Fani Willis' investigation into the former president's alleged efforts to overturn the results of the 2020 election in Georgia, and the DOJ is conducting its own investigation into what happened leading up to the January 6 Capitol riot.

While many aren't expecting Trump to face charges before the midterm elections, former New York City Police Commissioner Bernie Kerik told Newsmax on Saturday that it wouldn't surprise him. He accused the FBI and Department of Justice of being "politically corrupt," a criticism Trump and his supporters have frequently lobbed at the organizations.

Wu pushed back on claims the DOJ has been weaponized, arguing that Trump "blatantly" politicized the attorney general's office with the appointment of Bill Barr and that Trump wanted Barr to be "even more of a political weapon" than Barr was.

Cheri Jacobus, a political strategist, urged Garland to charge Trump, posting on Twitter that using the excuse of the midterm elections would be tantamount to a "failure" and is "indefensible." Others credited Trump with winning his strategy of delaying the case and called for the DOJ to move forward with charges and arrest him.

"While some might wish that Trump is arrested on any given day, the reality is that the DA or the U.S. Attorney General, or both, will have to weigh and make deliberate judgments about the evidence and the seismic consequences of such charges," McAuliffe said.

He added that while charges could be appropriate in one or more of the ongoing cases, pressing charges right before the midterms would "severely undermine the process to make those decisions."