Merrick Garland was a student of Harvard Constitutional Law professor Laurence Tribe, who has been trying to impress upon his former student through television appearances and op-eds that he has a duty to prosecute Donald Trump for his seditious insurrection. The DOJ must prosecute Trump to save American democracy from Trumpism, the new American fascism, and to hold the Coup Plotters accountable to the rule of law.
Laurence H. Tribe, professor emeritus of constitutional law at Harvard, Phillip Allen Lacovaraformer deputy solicitor general of the United States (and counsel to the Watergate special prosecutor, who argued the case of United States vs. Nixon), and Dennis Aftergut, a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy, write at the Los Angeles Times, The insurrection won’t end until Trump is prosecuted and disqualified from future office:
In a powerful warning Thursday, the patron saint of the conservative legal movement, former federal appellate Judge J. Michael Luttig, testified before the Jan. 6 Committee and pronounced former President Trump and his allies and supporters a “clear and present danger” to American constitutional democracy.
Conservative Judge Michael Luttig:
"Donald Trump and his allies and supporters are a clear and present danger to American democracy." pic.twitter.com/xSs6JMxvIR
— CAP Action (@CAPAction) June 16, 2022
As Luttig knows better than most, this historic phrase generates an extraordinary constitutional power of government to act — and a duty to do so.
Luttig’s verdict should be understood as a plea for Atty. Gen. Merrick Garland to proceed toward charging Trump with federal crimes that the public record now amply establishes. Only then will this nation be able to move forward from the ongoing insurrection.
Beyond the avalanche of documents and testimony pointing to Trump’s guilt and the principle that no one is above the law, there is an additional reason to indict Trump for his multi-faceted conspiracy in 2020 to override the vote. Upon a conviction for inciting insurrection, or being an accessory to insurrection, Trump would be subject to disqualification from acquiring federal office.
Section 3 of the 14th Amendment directs: “No person shall . . . hold any office . . . under the United States . . . who, having previously taken an oath . . . as an officer of the United States . . . to support the Constitution shall have engaged in insurrection or rebellion against the same.’’
There is ample evidence that Trump’s objective was the insurrection’s success. Among that evidence was his three-hour delay in calling on the attackers to go home and his vengeful tweet demeaning Vice President Mike Pence after Trump knew that the savage invasion of the U.S. Capitol had begun. That was “pouring gasoline on the fire,” testified former deputy White House press secretary Sarah Matthews.
Even without a direct charge of insurrection, allegations of such insurrectionist activities in an indictment for conspiring to defraud the United States or to obstruct an official proceeding or for seditious conspiracy might suffice for 14th Amendment disqualification if Trump were convicted.
Holding Trump accountable — and disqualifying him from future office — would not be a partisan act, but one needed to preserve the republic.
Without a prosecution of Trump, here are three things that seem sure to happen if he were allowed to run again and either be lawfully elected or succeed in installing himself in office despite defeat in the electoral college, as he attempted to do in 2020:
The end of elections in which a majority of voters choose their leaders
As Judge Luttig put it at Thursday’s hearing: The clear and present danger now is because “to this very day the former president and his allies and supporters pledge that in the presidential election of 2024, if the former president or his anointed successor as the Republican Party presidential candidate were to lose that election, they would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election.”
Republican-controlled state legislatures are already institutionalizing election sabotage — with GOP election officials determining election results no matter the vote winner. More than a dozen “election deniers” like Jim Marchant, who just won the Republican primary for secretary of state in Nevada, are GOP nominees for secretary of state and other election-controlling positions.
So even though Trump won’t hold the levers of presidential power in 2024 the way he did in 2020, he won’t need to: His allies and his disinformation are putting officials in place around the country who will certify his win whatever the vote.
The use of the military for domestic control
Trump’s administration deployed military helicopters in an unprecedented show of military force over peaceful demonstrators whom police attacked in Washington’s Lafayette Park in July 2020. Retired military leaders excoriated the abuse.
In early December 2020, Trump’s close ally, his former national security advisor and retired Lt. Gen. Michael Flynn, reportedly urged Trump to declare martial law.
On Nov. 9, 2020, Trump fired Defense Secretary Mark Esper and installed a more compliant Christopher Miller. On Jan. 4, 2021, Miller issued a memo requiring his approval to deploy the National Guard in Washington, D.C. On Jan. 6, Defense Department leadership delayed the National Guard’s response to the Capitol siege by three hours.
You don’t have to be a clairvoyant to imagine how military force against political foes — and restraint of force to protect violent supporters — will be used if Trump regains office.
The end of accountability
On June 17, in Nashville, Trump said that if reelected, he would consider “very, very seriously” pardoning all the participants in the Jan. 6 insurrection.
That could clear more than 310 insurrectionists who have pleaded guilty or been convicted at trial. Deterrence of future violence depends on judicially imposed sanctions. Trump would remove them, signaling that violent extremism in defense of Trump is no vice.
If he returns to the White House, he will install his people in the Justice Department and turn the machinery of prosecution against his enemies and toward protecting his friends and his schemes.
And should Trump get an encore, look to pre-World War II Germany for a mirror. A failed coup in 1923 taught Hitler a better route to dictatorship nine years later.
Those who repeat history are doomed to learn it. The hard way.
Merrick the Mild needs to stop being so damn cautious and worried about the image of the DOJ – his inaction is also damaging the image of the DOJ, and is putting the security of the nation at risk. I would suggest that he appoint an independent special prosecutor which would give him some arms length from the prosecution if he does not want to make the call himself.
Harvard law professor Jack Goldsmith, Senior Fellow at the Hoover Institute and co-founder of Lawfare blog, also makes this suggestion in his op-ed at the New York Times today.
My thoughts on Garland’s very difficult decisions. https://t.co/aIjugMkNlb
— Jack Goldsmith (@jacklgoldsmith) June 20, 2022
Attorney Harry Littman dismissed the independent special prosecutor idea citing that Merrick Garland is a DOJ insitutionalist who believes that the DOJ is capable of making the call.
The rest of Goldsmith’s piece is a wreck. Essentially he is afraid of the violent reaction from the Party of The Mob if Trump is indicted. In that case, no mafia boss would ever have been indicted and prosecuted. We don’t ask permission from criminals if we can indict them. This is a failure of cowardice.
Apart from the other flaws in this piece, it’s ridiculous to call “legally powerful” the wild claim that all Trump is charged with doing after losing the 11/20 election constituted “exercises of his constitutional prerogatives as chief executive.” What?!?https://t.co/ADdLOfkFbm
— Laurence Tribe (@tribelaw) June 20, 2022
Garland’s shoes are starting to feel a bit tight, but I’ve put myself in them as well and would, like @BoutrousTed, obtain a multi-count indictment as well, naming Mr. Trump as Individual #1 on each count. . . https://t.co/VGXFHoQFqI
— Laurence Tribe (@tribelaw) June 21, 2022
In that case, DOJ had better act quickly, because time is of the essence. DOJ does not have the luxury of time to investigate this criminal conspiracy. It needs to commit all of its resources to the priority of prosecuting the co-conspirator Coup Plotters at the top.
Former military prosecutor Glenn Kirschner has never been afraid to aggressively set forth why the public (and DOJ itself) doesn’t appreciate the seriousness of what happened on January 6th, even those of us versed in every element of what happened that day.
“Former Federal Prosecutor Sets Out Five Trump Acts That Easily Constitute Treason”, https://www.politicususa.com/2022/06/20/prosecutor-trump-treason.html
Glenn Kirschner believes that one could easily prove every element needed to convict Trump of treason. In reviewing Kirschner’s reasoning, (VIDEO BELOW), it seems almost like the most logical charge. However, the possibility of charging a president with such a crime is so far removed from what we ever considered possible that it is simply hard to put in its proper place. But set forth properly, it certainly does fit.
Trump as president, had the highest duty to the United State of any citizen, which is obviously established. From there, Kirschner points to five elements proving that Trump “levied war” against the nation.
First, Trump gathered his soldiers: “He recruited the Proud Boys and others, ‘stand back and stand by, await before their orders.’ He set the date for the Capitol attack, ‘come to DC January 6th, will be wild.’ He deployed them, and he gave the order: ‘go to the Capitol, fight like hell or you won’t have a country anymore,’ go stop the certification.”
Kirschner points to the fact that Trump used the word “steal,” to prove Trump’s corrupt intent. One might also point to the fact that John Eastman, Trump’s attorney, told him that the entire plan, even the electors scheme, was illegal on January 4th, according to testimony from the Committee.
Kirschner moves on: “He then sat in the White House dining room for three hours, watching the attack with people streaming in, begging him to call off his attack dogs, and he wouldn’t. And we know they asked him to send reinforcements to the Capitol to defend the people who were under attack, and he refused.
Kirschner points to the fact that it was Pence who had to make the order to get reinforcements to the Capitol, something Pence didn’t have the authority to do, almost proving that one element of the U.S. government was at war with another (That is my interpretation). Trump also mentioned that perhaps Pence should be executed.
He sums it up: “Katie, if what I just described is not levying war against the United States, against the democratic process, then what is?”
Literally nothing. And the “literally” is used literally. There is nothing that could more clearly constitute levying war against the United States. The only reason that – so far – we haven’t heard the word treason mentioned in serious legal circles is that a little over one-third of the United States still supports Trump and believes all the lies. If only five percent believed Trump and the other 95% opposed what he did, the charge would be viable. As it stands, the charge might damage the nation more than letting it go and charging Trump with a less serious and inflammatory crime.
We are a nation of laws, but any action under those laws must carry full legitimacy among the populace. Too many simply won’t accept a charge of treason. However, it is perhaps more important that Trump be held responsible for something, any sort of criminal charge and prosecution at least preserves the idea that no one is above the law.