Donald Trump had a very bad week for the subject of a criminal investigation. Not only were key elements of his Coup Plot revealed in striking detail, but Trump made a public admission against interest, in writing no less, that “Yeah I did it, and I’m going to do it it again. What are you going to do about it, coppers?”
Which raises the question, “Just what, if anything, is Merrick Garland’s Deprtment of Justice doing to investigate this brazen criminal? After this week of revelations, as former acting solicitor general Neal Katyal said, it would be investigative malpractice at this point not to have opened a criminal investigation.
Thank you @neal_katyal https://t.co/o7tbArvlup
— Nicolle Wallace (@NicolleDWallace) February 4, 2022
I agree, but sadly “investigative malpractice” isn’t exactly a thing https://t.co/ty23zLyYeS
— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) February 4, 2022
Former U.S. attorney and deputy assistant attorney general Harry Litman writes at the Los Angeles Times, OK, Justice Department, you have plenty of evidence to indict Trump now:
Combined with what we already knew, former President Trump’s statement Sunday night leaves no doubt that his intent on Jan. 6 had been to overturn the results of the election he lost:
“Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!”
You can add that statement to the copious proof of Trump’s criminal intent that the House Jan. 6 committee has already developed regarding his unconstitutional maneuvers that day. But, of course, Trump has never hidden his desire to take and keep power without any regard to the Constitution, the truth or the law. He tweeted that Pence “didn’t have the courage to do what should have been done” even as the insurrectionists stormed the Capitol, forced Congress to suspend the electoral vote count, and drove Pence and lawmakers into hiding for fear of being killed.
Indeed, Trump’s statement and his incendiary speech at a rally in Texas on Saturday show that he is prepared to employ any strategy to seize the White House if he runs in 2024. As Rep. Liz Cheney (R-Wyo.) tweeted on Monday, “He’d do it all again if given the chance.”
Under Justice Department prosecution standards, just the publicly available evidence is sufficient to bring an indictment against Trump for the federal crime of obstructing or impeding an official proceeding — in this case, Congress’ certification of a presidential election.
The guidelines for federal prosecutions specify that prosecutors “should” generally commence prosecution if two circumstances exist: first, the person’s conduct constitutes a federal offense — i.e. the prosecutor has determined that the defendant really is guilty and the prosecution is righteous — and second, the admissible evidence will “probably be sufficient” to convict.
In Trump’s case, there really is no tenable conclusion other than that he urged on the demonstrators to provoke them to obstruct or impede the official congressional proceeding. Add to that the clear proof that he personally attempted to impede the proceeding by pushing Pence to illegally block the certification. In fact, it looks increasingly as if the Jan. 6 insurrection was just a culminating episode in a weeks-long campaign by Trump to overturn the election. We learned Monday that Trump was involved in exploring the idea of seizing voting machines, but the Justice Department or other departments would not go along with the plan.
As for the second factor, the odds are good that a Washington, D.C., jury would return a guilty verdict given the overwhelming evidence.
Since the guidelines appear to be met, should the Justice Department immediately seek an indictment as the guidelines suggest?
Many smart observers think so and believe Atty. Gen. Merrick Garland is being overly diffident and methodical. Garland has indicated that the department will review all possible charges and work its way up a ladder of culpability to the top. Given the outrageousness of Trump’s conduct, and the need to hold him accountable and keep him from a second shot at hijacking the Constitution, responsible voices are urging much quicker action, ideally before the midterm elections. It seems clear that if others were in Garland’s position, the department would pull the trigger right now.
Perhaps there is justification for moving more quickly, with the case against Trump already sufficiently powerful. But there is a welter of other unavoidable considerations, cutting both ways; and many of them are beyond Garland’s judgment alone. The prosecution of a former president is not, and never has been, simply a question of checking the two boxes on the federal prosecution guidelines.
Start here: An unsuccessful prosecution of Trump — including a hung jury [or jury nullifcation] — would be a disaster that would guarantee further division in a political system that Trump has already made fragile. That means that the Justice Department needs to build an airtight case, with solid witnesses, where conviction is not just probable but as close to certain as humanly possible. And conviction at trial won’t be an end point; there is certain to be an appeal, including up to the Supreme Court, now packed with three Trump appointees.
Even more weighty, and probably beyond the solitary judgment of an attorney general, are the considerations of whether a prosecution is good for the country. In the Nixon case, President Ford was the right person to decide whether to pardon the former president, and though that decision provoked outrage at the time, it probably did end the “national nightmare,” as Ford explained it.
It was the wrong decision. It established a standard for lawlessness by presidents without legal consequences, from Iran-Contra under Reagan-Bush, to illegal torture and illegal surveillance on a massive scale by George W. Bush, to the multitude of serious crimes committed by Donald Trump. If there are no legal consequences, there is only an incentive to engage in such unlawful conduct.
In the Trump case, the need for national closure, if anything, cuts in the opposite direction — in favor of prosecution. Trump’s brazen lack of remorse — and, indeed, his assurance that he will do it again if given the chance — counsels in favor of charging him, both to hold him accountable and to deter and incapacitate him from a repeat performance.
Prosecutors are supposed to be above politics. But the prosecution of a former president is unavoidably political. That means any final call to greenlight the prosecution will need to involve President Biden — but if the decision is not to prosecute, it won’t be for lack of evidence of criminal conduct.
The Jan 6 committee is doing some of DOJ’s preparatory work for it. The AG had better pick up the baton and run with it. Any other course of action would be inexcusable. https://t.co/UsHKOzSLwN
— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) February 6, 2022
When the former guy confesses in plain sight that he tried to “overturn the election” and believes he was (and remains) entitled to do just that, he is testing whether we have a real Department of Justice or just a poor facsimile that rolls over and plays dead when threatened. https://t.co/7nxzM17Iuf
— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) February 1, 2022
There are some easy calls which preexist Trump’s attempted coup on January 6, 2021. He was identifed as an unindicted co-conspirator in Michael Cohen’s case; and Robert Mueller laid out at least 10 instances of obstruction of justice in his Mueller Report. Trump was not prosecuted only because of the bogus OLC memos that establish department policy not to prosecute a sitting president. Trump is no longer president, for over a year now. Start with the easy stuff, Mr. Attorney General. Any competent U.S. Attorney should be able to use this existing work to draft an indictment within a couple of hours. You have had over a year.
Not prosecuting Donald Trump and his co-conspirators for a coup d’etat is not an option.
I have said before that if Merrick Garland is not up to the job of defending American democracy, he should resign now and afford President Biden the opportunity to appoint an aggressive prosecutor who will. Time is of the essence, Mr. Attorney General. Your overly cautious dithering could cost us the Republic.
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Radall Eiiason writes at the Washington Post, “Yes or no on Mueller report criminal charges? Don’t let Trump just run out the clock.”, https://www.washingtonpost.com/opinions/2022/02/07/trump-garland-and-the-mueller-report/
It’s time for the Biden Justice Department to issue a report on the Mueller report.
[N]early three years ago, special counsel Robert S. Mueller III presented an exhaustive report detailing almost a dozen instances of possible obstruction of justice by Trump in connection with the investigation of Russian interference in the 2016 presidential election. The five-year statute of limitations on the first such instance — Trump’s alleged request to then-FBI Director James B. Comey to drop the criminal investigation of disgraced former national security adviser Michael Flynn — expires on Feb. 14. Other acts of possible obstruction soon will be similarly time-barred.
[T]he possibility was that Trump could be charged with obstruction if he left office in 2021. In congressional testimony in 2019 about his report, Mueller noted that a sitting president could be indicted once he left office. Once Joe Biden was sworn in as president, there was no policy impediment to his Justice Department pursuing the obstruction charges.
But more than a year has passed, and we have heard nothing but crickets from Justice about the Mueller report. Admittedly, the department has been a little busy handling, among other things, the massive investigation into efforts to overthrow the election. But the clock is ticking on the potential obstruction charges outlined by Mueller. Is anyone at Justice watching that clock?
[M]any believe the evidence of Trump’s obstruction is overwhelming. And if the passage of time starts to close the windows on possible obstruction charges, the public will be left to wonder whether the Justice Department even considered them. That’s not good for the department — or for the principle that no one, including a former president, is above the law.
The Justice Department ought to announce either that it is actively evaluating the obstruction charges or that it has decided not to pursue them. It’s true that Justice usually doesn’t issue statements about cases it declines to bring, but this is not a usual case. There is already a massive public record about these events, so privacy concerns about those under investigation do not apply. And there is a tremendous public interest in knowing the resolution of any case involving a former — and possibly future — president.
A decision not to prosecute Trump for obstruction may be defensible. But if that’s the decision, the Justice Department should defend it. It shouldn’t leave the country wondering whether it just ducked the issue by allowing Trump to run out the clock.