Pressure Builds On The Department Of Justice To Investigate The Coup Plotters

Update to January 6 Committee Alleges Trump And His Closest Allies Engaged In A Conspiracy To Defraud The United States And To Obstruct An Official Congressional Proceeding.

The pleading in this civil case adhere’s closely to the criminal case against Donald Trump that former U.S. Attorney Barbara McQuade outlined in a piece at Just Security blog last month. This is not unusual. Any lawyer worth his or her salt should see the same case from the publicly reported information to come out of the January 6 Committee.

Barbara McQuade wrote, United States v. Donald Trump:

The following memorandum is a model “prosecution memo” analyzing potential charges against former President Donald Trump for his efforts to pressure Mike Pence to abuse his authority as vice president in an attempt to overturn the 2020 presidential election on Jan. 6, 2021. Prosecution memos are prepared by attorneys in criminal cases at the Department of Justice to summarize the evidence and their legal theories for prosecution. Prosecution memos enable supervisors and others in the chain of command to review the evidence, anticipate defenses, and assess the strengths and weaknesses of a criminal prosecution.

McQuade then goes into a legthy analysis outlining the laws and applying them to the publicly known facts. She concludes:

CONCLUDING THOUGHTS

A final factor would need to be considered that is absent in most cases – whether the country would be best served by a criminal prosecution. On the one hand, as discussed above, a substantial federal interest is served by prosecuting a leader who attempted to overturn an election. On the other hand, criminal charges against Trump could have a dangerously divisive effect on the country. Trump’s unrelenting rhetoric about a stolen election no doubt contributed to the violent response that occurred on Jan. 6. DOJ would need to consider the backlash that would likely follow the filing of criminal charges against him. Violent protests and civil unrest should be expected. We might even anticipate loss of life.

The other potential negative consequence that would need to be considered would be an acquittal. If Trump were charged and acquitted at trial [by jury nullification], then he and his violent extremist followers would be emboldened. A sober and clear-eyed assessment of prosecution must consider that charging Trump criminally could have profoundly negative consequences for our country.

The only thing worse would be not charging him.

Barbara McQuade, a former U.S. Attorney, has quite literally already done the work for the Department of Justice. This is the charging memo that Attorney General Merrick Garland should have already received from his line prosecutors. He definitely should review McQuade’s charging memo.

I expressed my frustration with Merrick Garland in the earlier post:

The January 6 Committee is doing the job that the Department of Justice should have been doing for over a year now. But there is no publicly available information that the Department of Justice is actually investigating the Coup Plotters.

So we need to ask the pertinent question, “If the January 6 Committee makes criminal referrals of the Coup Plotters to the Department of Justice, will ‘Merrick the Mild’ actually pursue criminal prosecutions of the Coup Plotters“? In my opinion, the failure to prosecute these criminals would be prosecutorial malpractice (not an actual thing, but it should be).

What is the rational behind a “political decision” not to prosecute the Coup Plotters who sought to overthrow American democracy and the 2020 election, and to install Donald Trump as America’s first GQP authoritarian dictator? To give them a chance to do it again?

As has often been said, “a failed coup is just practice for the next one.” They’ve learned from their mistakes, and they may succeed the next time.

In any other country in the world, there are only three responses to a coup d’etat: imprisonment, execution, or exile. Only in America is there now apparently a fourth option: “meh, no big deal.”

The New York Times reports today, Pressure on Justice Dept. as Jan. 6 Panel Lays Out Case Against Trump:

The Justice Department is facing mounting pressure to prosecute former President Donald J. Trump after the House committee investigating the Jan. 6 attack laid out its argument for a potential criminal case on Wednesday night, placing Attorney General Merrick B. Garland squarely in the middle of a politically charged debate over how to hold Mr. Trump accountable for efforts to overturn the election.

Even as Democrats have criticized Mr. Garland for remaining silent on Mr. Trump’s actions, he has sought to insulate the agency from politicization, an effort he sees as a corrective to Mr. Trump’s pressure campaigns to force the department to bend to his agenda.

Building a criminal case against Mr. Trump is very difficult for federal prosecutors, experts say, given the high burden of proof they must show, questions about Mr. Trump’s mental state and the likelihood of any decision being appealed, underlining the dilemma confronting the agency.

The department has never said whether it is exploring a criminal prosecution of Mr. Trump, though Mr. Garland has vowed to pursue wrongdoing “at any level,” keeping alive the possibility that federal prosecutors might someday charge the former president.

A Justice Department spokesman declined to comment.

2 of the 3 co-equal branches of government have stated, plainly & directly, that Trump committed crimes against the US. BUT the only branch w/the power to prosecute, the executive branch (DOJ) has done nothing to address these crimes. #JusticeMatters video dropping shortly.

— Glenn Kirschner (@glennkirschner2) March 4, 2022

 

.@glennkirschner2 on Jan. 6 probe: "I don't see how the DOJ has ignored the mountain of evidence regarding Donald Trump's criminal responsibility for all of this that we see reported out every day." #TheReidOut pic.twitter.com/8V6Y2bvjr4

— The ReidOut (@thereidout) March 4, 2022

“The Justice Department will have to ask that question: Is there a winning case here?” said Norm Eisen, a Brookings Institution fellow who served as special counsel to the House Judiciary Committee during the first impeachment of Mr. Trump. “If there is strong evidence, but prosecutors don’t think they can secure a conviction, they will have to use prosecutorial discretion.”

That said, Mr. Eisen said the evidence that the committee produced in support of its argument could be powerful, and “support the idea that Trump and those around him are at risk of federal or state prosecution.”

It was far easier for the committee to claim that Mr. Trump had committed a crime in the context of the court fight that prompted it — a dispute over a subpoena for documents written by a lawyer — than it would be for prosecutors to win a criminal conviction over the same facts, legal specialists said.

The filing on Wednesday, which said that the committee had evidence to suggest that Mr. Trump might have engaged in a criminal conspiracy, is the work of three veteran Justice Department lawyers who would be deeply familiar with the complications that such allegations create for the agency.

These three veteran DOJ attorneys would not put their names to this pleading if they were not convinced that they could obtain a conviction on these facts.

Losing such a case has far-reaching implications. It risks severely undermining the department’s credibility, empowering and emboldening Mr. Trump and his allies, and making it harder for the federal courts to hold future presidents accountable for misdeeds.

In publicly sharing its work, the committee has only escalated expectations that Mr. Trump will be prosecuted, regardless of whether its evidence meets the standard that a federal prosecutor must clear to secure a unanimous guilty verdict.

In its court filing, the panel suggested it had evidence to support allegations that Mr. Trump committed two crimes: obstructing an official proceeding by working to disrupt the electoral vote count and conspiring with his allies, including the conservative lawyer John Eastman, to defraud the United States by working to overturn the election results.

“The evidence supports an inference” that Mr. Trump, Mr. Eastman and several others “entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort,” the filing said.

However, the filing was not necessarily a path to prosecution. The committee made its claim in the context of the court fight that prompted it — a dispute over a subpoena for documents written by Mr. Eastman. The standard it must meet to invoke crimes is much lower than it would be for prosecutors to win a criminal conviction, legal specialists said.

Specifically, Mr. Eastman has invoked attorney-client privilege to block the subpoena, and the committee wants a judge to enforce it anyway under an exception for materials that involve crimes or fraud.

It is asking the judge to view the disputed materials privately, and to do so it need only convince the court that it has a “good faith” reason to believe that such a private viewing “may reveal” evidence that the exception applies — a far lower bar than proving something to a jury beyond a reasonable doubt.

The central theory put forward by the Jan. 6 committee is that Mr. Trump tried to disrupt an official proceeding — Congress’s certification of the election results — by pressuring Vice President Mike Pence to illegally reject the electoral votes from certain states.

Samuel Buell, a Duke University law professor and former federal prosecutor, said that while the facts of what happened were largely clear, the challenge to convicting Mr. Trump would center on proving that he had a corrupt intent — essentially, that Mr. Trump knew that there was no valid lawful basis for Mr. Pence to do what he was demanding.

At a trial, Mr. Trump’s defense team would have a powerful argument about his mental state: Even though government lawyers told him that Mr. Pence did not have that authority, Mr. Eastman told him that the vice president could lawfully do what he wanted. The defense could say this shows that Mr. Trump sincerely thought he was asking Mr. Pence to do something lawful — raising a possible reasonable doubt in jurors’ minds about whether his intentions were corrupt.

WTF is this? Trump defense attorney talking points? Trump is obligated to follow the legal advice from the government attorneys, including his own Attorney General William Barr, who told him that he could not do this. Some third-party lawyer from a right-wing think tank with a crackpot theory about the law is no defense. Especially when he is a co-conspirator among Coup Plotters. There is also no evidence that that Eastman ever had an attorney-client relationship with Trump (a point of contention in this case). Just because some random Dude Trump talked to happened to be a lawyer does not establish an attorney-client relationship.

Mr. Buell said that in an ordinary white-collar criminal case, it is not uncommon for corporate defendants to point to something their lawyers had said to maintain that they did not think they were doing anything criminal. Prosecutors sometimes go forward with such cases anyway, he said, knowing it will be an argument in trial they will need to try to defeat.

But the “enormous political implications” of charging the immediate past president — and possible 2024 election contender — make that calculus all the more risky for Mr. Garland, he said.

Federal charges against a former president would be a first in American history. While President Richard M. Nixon resigned in 1974 to avoid being impeached, President Gerald R. Ford pardoned him, absolving him of any criminal charges and sparing the Justice Department from prosecuting him. [Gerald Ford was wrong, and set a terrible precedent.]

A case against a former president would always be mired in politics, a dynamic especially true now given how deeply polarized the nation has become.

If the Justice Department were to criminally charge Mr. Trump, his supporters would most likely interpret it as President Biden’s handpicked attorney general deploying the department to attack the de facto leader of a rival party — particularly if they believe Mr. Trump’s lies that the 2020 election was stolen.

Delusional cult members should not be a consideration in the decision whether or not to prosecute. If these domestic terrorists act out and get violent, round ’em all up and prosecute them as well. We can always build more prisons.

Should the Justice Department not bring charges, Mr. Trump’s opponents could feel that it had blatantly abdicated its duties. After the election, Mr. Trump continued to declare himself the winner, denying evidence compiled by his own administration. He pressured public officials to support his false claims, and he exhorted his followers to stop the peaceful transfer of power on Jan. 6.

Jennifer Rubin, who is also a lawyer, writes, The Justice Dept. and the Jan. 6 inquiry make moves to snare Trump:

Those criticizing Attorney General Merrick Garland for not moving expeditiously against former president Donald Trump for an attempted coup should take heart. [I’ll believe it when I see it.]

On Wednesday, we saw a matter-of-fact announcement from the Justice Department: “A regional leader of the Oath Keepers pleaded guilty today to seditious conspiracy and obstruction of an official proceeding for his actions before, during and after the breach of the U.S. Capitol on Jan. 6, 2021. His and others’ actions disrupted a joint session of the U.S. Congress convened to ascertain and count the electoral votes related to the presidential election.” The announcement continued: “Joshua James, 34, of Arab, Alabama, pleaded guilty to seditious conspiracy in connection with the Capitol breach. As part of the plea agreement, James has agreed to cooperate with the government’s ongoing investigation.”

The definitions of his crimes (seditious conspiracy and obstruction of an official proceeding) are precisely the ones that may best fit Trump’s behavior both before and on Jan. 6.

 [L]ikewise, James’s plea bargain affirms that these crimes — seditious conspiracy and obstruction of an official proceeding — apply to the events of Jan. 6. Now the question turns to who else was involved in the conspiracy and who else directly or indirectly participated in obstruction.

A conspiracy to impede the transfer of power could include, for example, promulgating the big lie, strong-arming Georgia Secretary of State Brad Raffensperger to “find” just enough votes to flip the state, pressuring Michigan election officials not to certify the vote for Biden, organizing fake electors, cajoling Vice President Mike Pence to disregard the electoral count, badgering the Justice Department to declare the election “corrupt,” working with congressmen to raise baseless objections to the electoral votes — and, ultimately, exhorting a mob to march on the Capitol when Congress was tabulating the electoral votes. Critical to that conspiracy was obstructing the congressional proceedings that officially would have announced Biden’s victory.

The committee and the Justice Department are essentially working from both ends of possible conspiracy and obstruction charges. The Justice Department is working from the bottom up, as it would in an investigation of organized crime. Here the innocuous announcement that James “has agreed to cooperate” should serve as a flashing red light to Trump and his cronies, especially those aides who allegedly staked out a “command center” at the Willard hotel on Jan. 6. Knitting together the leaders of the mob on the Mall with the Trump cohorts involved in a “corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power,” as the Jan. 6 committee put it, will be critical to tying Trump to the violent insurrection.

In a speech a year after the attack on the Capitol, Garland tried to assure the public that the Justice Department was neither dragging its feet nor ruling out prosecution of Trump. “In complex cases, initial charges are often less severe than later charged offenses. This is purposeful, as investigators methodically collect and sift through more evidence,” he said. “The actions we have taken thus far will not be our last. 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.” He added, “We will follow the facts wherever they lead.”

From the committee’s statements, the latest plea deal and the other seditious conspiracy charges, we see signs that the House and the Justice Department are proceeding along common legal theories that they both agree fit the general fact pattern. If the facts necessary to implicate Trump and his top advisers emerge, the Justice Department will be hard pressed to decline to prosecute.

Yet the DOJ could decline, citing “prosecutorial discretion” for what would amount to a political decision, something the DOJ is not supposed to do (yes, William Barr did it with the the Mueller Report).