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The January 6th Criminal Case Against Donald Trump

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The January 6th Criminal Case Against Donald Trump

In hindsight, Donald Trump’s intentions could not appear clearer. During the final months of the 2020 Presidential race, he systematically conducted a disinformation campaign that convinced many of his supporters the election would be stolen by Democrats. After losing, he doubled down on those false claims and repeatedly pressured state election officials, Justice Department prosecutors, federal and state judges, members of Congress, and the Vice-President to overturn the results. After those efforts failed, he appeared at a rally in Washington, D.C., where he urged thousands of his supporters to stop Congress from certifying his defeat. For hours, as they stormed the Capitol, he failed to act.

Those steps, the leaders of the congressional committee investigating the January 6th attack on the Capitol contend, seemingly constitute a crime. But, based on the evidence made public so far, the unprecedented nature of Trump’s actions—together with the vagueness of laws regarding the certification of Presidential elections, legal loopholes, and his manipulation of others—could allow the former President to escape being criminally charged for his role in events surrounding the attack.

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A congressional staffer with knowledge of the committee’s investigation said that it is ongoing and “too early to say” what it will yield. The staffer pointed out that Trump has a history of trying to avoid explicitly implicating himself in wrongdoing over the years, as he did in the Oval Office call with Ukraine’s President—which, nevertheless, led to his first impeachment. “Trump seems to have been very careful never to give an order—to strongly insinuate what should happen rather than giving an order,” the staffer told me, comparing Trump with Henry II of England, who famously (perhaps apocryphally) engineered the murder of the Archbishop of Canterbury by signalling to subordinates his desire to be free of the religious leader without explicitly ordering it. The staffer, who asked not to be named, invoked a phrase said to have been uttered by the twelfth-century king: “ ‘Who will rid me of this meddlesome priest?’ ”

Recent statements by the committee chair, Bennie Thompson, and the vice-chair, Liz Cheney—one of only two Republicans on the panel—have raised expectations that the panel will refer Trump to the Justice Department for criminal prosecution. Such a step would increase the political pressure on Attorney General Merrick Garland to prosecute Trump. In a television interview on Sunday, Thompson said that the panel is examining whether Trump committed a crime: “If there’s any confidence on the part of our committee that something criminal we believe has occurred, we’ll make the referral.” And Cheney, in a speech last month, mentioned a specific charge: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”

Federal prosecutors in Washington have charged dozens of rioters who stormed the Capitol with felony counts of obstructing an official proceeding of Congress, which carry a potential sentence of up to twenty years. But legal experts said that convicting Trump of such a charge could be difficult. Ilya Somin, a libertarian legal scholar at George Mason University and a critic of the former President, told me that Trump’s lawyers would likely argue that it did not apply to him because he did not enter the Capitol on January 6th. “I think it is very clear that it applies to the people who entered the building,” Somin said. “If Trump did enter the building and lead the attack in person, it would be much easier to convict him of this and other offenses.”

The congressional staffer with knowledge of the committee’s work said that the media had exaggerated Thompson and Cheney’s statements. “The criminal-referral stuff has gotten blown out of proportion,” the staffer cautioned. “It has become the shiny new object.” (Another shiny new object emerged on Tuesday, when the committee asked the Fox News host Sean Hannity to voluntarily testify about text messages that he’d sent which show he had “advance knowledge regarding President Trump’s and his legal team’s planning for January 6th.” Hannity warned against Republicans in Congress trying to overturn the results, writing on January 5th that he was “very worried about the next 48 hours.”) The staffer said that the committee is primarily focussed on creating a definitive history of events on January 6th and recommending laws and reforms that would prevent future attempts to overturn elections—“giving the American people the full picture of what happened and making recommendations to help insure that nothing like January 6th happens again.”

Ultimately, the decision about whether to prosecute Trump lies with Garland, a former federal judge who has made restoring public faith in the political neutrality of the Justice Department his core goal. Despite Garland’s attempts to divorce the Justice Department from politically charged prosecutions, it is increasingly clear that investigating Trump is becoming the defining issue of his tenure. The continued defiance of Trump and his allies is forcing Garland to make a decision faced by none of his predecessors: whether to prosecute a former President who tried to subvert an election and appears ready to do so again. Democrats are demanding that Garland move more aggressively, with Representative Ruben Gallego, of Arizona, declaring his effort so far “weak” and “feckless,” and contending that there are “a lot more of the organizers of January 6th that should be arrested by now.”

David Laufman, a former senior Justice Department official, said he disagreed with criticism of the Justice Department for not having already charged Trump criminally. “Notwithstanding the horrors of January 6th, D.O.J. should not be pursuing criminal investigations or prosecutions against former President Trump or others connected to the attack on the Capitol unless both the facts and the law support doing so under established policy,” he said. “It’s the ‘Department of Justice’—not the ‘Department of Retribution’—and we don’t want to see the rule of law eroded just to make us feel good.” But Laufman also called for prosecutors to not go easy on Trump, adding that the department shouldn’t “be shying away from using the full weight of its enforcement authorities against Trump or anyone else simply because doing so could be perceived as politically motivated.”

On Wednesday afternoon, Garland gave a speech that was clearly designed to reassure the public and counter critics. The twenty-five-minute address was vintage Garland. He pledged political neutrality and declared that “we follow the facts—not an agenda or an assumption.” He promised equal justice for all: “There cannot be different rules depending on one’s political party or affiliation. There cannot be different rules for friends and foes.” And he vowed further measures. “The actions we have taken thus far will not be our last,” he said, adding that “the Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy.”

In an era when the majority of Republicans falsely believe that the 2020 election was fraudulent and the majority of Democrats think that it was not, Garland will be demonized no matter what action he takes regarding Trump. The Attorney General, based on his speech, continues to believe that he can restore “normal order”—a Justice Department term for basing decisions on whether to charge defendants strictly on the facts of a case. He continues to believe that the majority of Americans still support the principle that all people should be treated fairly under the law, including Donald Trump. And that the majority will reject political violence and trust the judicial system. At the moment, that belief, for Garland and all Americans, is an enormous political gamble.

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The January 6th Criminal Case Against Donald Trump