The Future Criminal Case Against Donald Trump

So far the hearings of the House Select Committee on January 6th have been devastating for Donald Trump in that they have documented that he had no legitimate basis to claim he had won the 2020 presidential election and that there was absolutely nothing to back his "Big Lie" that the election was stolen.  He was repeatedly told by numerous inner circle sources that his claims were, to quote William Barr, "bullshit."  As the Committee hearings continue to unfold, the evidence will likely only get worse for Trump and some of those who deliberately sought to disrupt the certification of Joe Biden's victory or to overthrow the election entirely.  Thus, what has been revealed so far is what many of us expected: the Big Lie and the January 6th insurrection were the product of a malignant narcissist intent on holding on to power - and a shield from criminal prosecutions - at any cost, even overthrowing democracy.  Like Trump's entire life story, the efforts to overthrow the election was a matter of putting his own sick interests over the rule of law and once again lying incessantly.   A piece in the New York Times looks at the possible criminal indictments coming against Trump.  Here are excerpts:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President Donald Trump committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

Critics of the hearings who say they are too detailed and dry miss the multiple intended audiences. . . . there are several audiences. One is the nine justices. Another audience is the public — both in the courtroom and listeners online. And there’s a third audience: history.

Whatever the immediate outcome, history can render a different judgment. The same is true for this committee. Twenty million people watched the first hearing, but the other two audiences — the immediate decision makers and the eyes of history — potentially will have an even more profound impact on our democracy.

Merrick Garland and high officials at the Justice Department, not nine justices, are the immediate decision makers. . . . . A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what Trump did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public.

Now consider that elusive third audience: the eyes of history. On the one hand, Mr. Garland has to fear being seen as political, and on the other, he knows that the rule of law requires him to bring an indictment if the evidence shows Mr. Trump committed one of the most serious crimes against the United States in our history.

What would criminal charges against Donald Trump look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly.

Before the hearings, it was thought that Mr. Trump’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. Trump’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. Trump’s daughter Ivanka testified that she believed Mr. Barr. Mr. Trump’s own election data people told him the same. Mr. Trump might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. Trump persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed . . . . Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. Trump faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. Trump believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. Trump.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. Trump’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.”

Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department. Because history will.