The decision to prosecute the former President, or to absolve his crimes, will shape US politics for generations, says CJ Werleman

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The US House of Representatives January 6 Committee hearings into the US Capitol insurrection have been riveting, convincing, and damning. But, like any other reality television show that drags on a little too long, you want to fast forward to the ending. We want to find out whether Donald Trump is going to jail or not.

The answer to that question will be determined in a federal court if the Department of Justice (DoJ) determines, based on the evidence brought forward by the committee, that the former President can or should be charged with a crime. What started out as an uncertainty a few weeks ago has become more and more likely with each passing televised hearing.

“As someone who looked at investigations at the FBI – the breadth of information and depth of people who were involved at the White House has led me over the past few weeks to say…man, if you’re at DoJ you’re in one hot place. If you ignore this, you’re ignoring a lot of evidence. It’s pretty clear they tried to change the election,” said former CIA counterterrorism analyst Philip Mudd in an interview on Tuesday, referring to the Trump campaign.

The same day, Mother Jones published leaked audio, revealing former Trump campaign manager Steve Bannon telling a group of associates before election day that Trump had already concocted a plan to declare victory on election night – even if he was losing by 10 points.

“What Trump’s gonna do is just declare victory. Right? He’s gonna declare victory. But that doesn’t mean he’s a winner,” Bannon, laughing, told the group. “He’s just gonna say he’s a winner. At 10 or 11 o’clock Trump’s gonna walk in the Oval, tweet out: ‘I’m the winner. Game over. Suck on that.’”

Trump knew that he and the Republican Party would have an early lead in vote count, given a greater proportion of Democratic Party voters opting for mail-in ballots because of the pandemic. His plot was to use this fact to claim victory, while falsely asserting the inevitable shifts in vote totals towards Joe Biden during the night were the result of “widespread voter fraud”.

“After then, Trump never has to go to a voter again,” Bannon added, seemingly predicting the breakdown of democracy in the country. “He’s done his last election”.

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Hardly a secret, since Trump had spent the final few months of the campaign telegraphing this exact same “strategy” by forewarning a “rigged election”, this was the same warning he gave in 2016, until he won.

The DoJ will soon be presented with a range of possible crimes that Trump may have committed in his frenzied efforts to overturn the results of the 2020 Election, and we know that top DoJ officials have been paying close attention, having sent a letter to the January 6 Committee on 15 June, saying the testimony and evidence collected by the committee is “potentially relevant to our overall criminal investigations” in connection to the attack on the US Capitol, which left five Americans dead.

“This committee has laid out details of a multipart pressure campaign driven by the former President aimed at aimed at overturning the results of the 2020 Presidential Election and blocking the transfer of power,” said committee chairman, Representative Bennie Thompson (D-MS) during the sixth hearing on 28 June. “We’ve shown that this effort was based on a lie – a lie that the election was stolen, tainted by widespread fraud: Donald Trump’s big lie”.

There has been far more damning evidence presented since, including eyewitness testimony alleging that Trump knew the insurrectionists were armed and didn’t care, even telling Secret Service officers: “You know, I don’t f*cking care that they have weapons. Let my people in. They can march to the Capitol from here”. 

We now also know there was a level of coordination between the White House and the armed mob – but the most potentially damning evidence against the former president are text messages showing that the Trump 2020 campaign tried to obstruct Biden’s election win through an illegal scheme to send fake slates of electors to Congress.

There’s also potential evidence of witness tampering and intimidation regarding Trump’s effort to stop a White House staffer from corroborating the testimony of Cassidy Hutchinson, a former White House aide, who had testified under oath that Trump demanded to be taken to the US Capitol with the armed mob.


A Watershed Decision

So, what criminal charges might the DoJ bring against the former President?

These are the four main options:

  1. Inciting Insurrection: that Trump incited lawless and violent action before and during his speech to the armed mob at the Ellipse on January 6.
  2. Conspiracy to Defraud the United States: that Trump knew his claims of widespread voter fraud were untrue but brought in others to support his big lie in a criminal plot to overturn the will of American voters.
  3. Conspiracy to Obstruct an Official Proceeding: that Trump intended to disrupt and stop the certification of Electoral College votes by the US Congress.
  4. Seditious Conspiracy: that Trump plotted with others, including white nationalist groups the Proud Boys and Oath Keepers, to overthrow the US Government.

Based on the past six hearings alone, the DoJ has a slam dunk case for bringing charges against Trump, but there are concerns that the DoJ is too narrowly focused on the January 6 insurrection itself, and not on the wider ‘hub and spoke’ conspiracy to defraud the United States.

“Instead, what the hearings have revealed is evidence of a plot orchestrated by Mr Trump and his allies in the White House and elsewhere – including players from the Mueller investigation like Roger Stone, Michael Flynn and Rudy Giuliani as well as new players like Jeffrey Clark and John Eastman,” argues Andrew Weissmann, a former DoJ prosecutor and senior prosecutor in Robert Mueller’s special counsel investigation.

He says that the ‘spoke’ of the January 6 insurrection should be seen and investigated alongside the other spokes, which include “orchestrating fake electors in key states, pressuring state officials like those in Georgia to find new votes, plotting to behead the leadership of the Justice Department to promote a lackey who would further the conspiracy by announcing a spurious investigation into election fraud, and pressuring Vice President Mike Pence to violate the law”.

Don’t Miss a Story

Ultimately, the only opinion that matters is that belonging to US Attorney General Merrick Garland. If he concludes that Trump has committed crimes, he would be faced with the “hardest decision” he has ever had to make, observes Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution.

Garland would have to decide whether the national interest would be served by prosecuting Trump. “This is not a question that lawyerly analysis alone can resolve. It’s a judgement call about the nature, and fate, of our democracy… indicting a past and possible future political adversary of the current President would be a cataclysmic event from which the nation would not soon recover,” Goldsmith says. “It would be seen by many as politicised retribution. The prosecution would take many years to conclude, would last through and deeply affect the next election and would leave Mr Trump’s ultimate fate to the next administration, which could be headed by Mr Trump”.

Others have argued that it might even incite civil war.

But if Trump escapes criminal prosecution due to these potential fears, and not on the merit of the case against him, then the DoJ will have signalled that the US President sits above the law, therefore delivering another death blow to American democracy.

“It would encourage lawlessness by future presidents, none more so than Mr Trump should he win the next election,” Goldsmith says.

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