Prosecuting Trump
On December 19, 2022 the House Select Committee to Investigate the January 6th Attack on the United States Capitol voted to recommend that the Department of Justice initiate criminal proceedings against Donald Trump and others based upon their series of efforts to overturn the results of the 2020 presidential election. That was followed on December 22nd by the Select Committee’s issuance of its 845 page report itemizing its findings and identifying former President Donald Trump as the person most responsible for those efforts which included:
Promoting and continuously repeating the “Big Lie” that the 2020 Presidential election had been stolen from him by fraudulent means;
Causing over 60 baseless court cases to be initiated challenging the outcome of the election in six battleground states (Georgia, Pennsylvania, Michigan, Wisconsin, Arizona and Nevada);
Causing 84 individuals to misrepresent themselves as the duly elected Presidential electors in their states and to submit signed affidavits to the Congress and the National Archives that Donald J. Trump had won the electoral votes of their states;
Making false representations to legislators in battleground states in an effort to cause them to set aside the results of the Presidential election in their states and to declare Donald J. Trump the winner of their state’s electoral votes;
Pressuring senior officials within the Department of Justice to write letters to the legislatures in the six battleground states falsely claiming that the Department had uncovered evidence indicating that the Presidential election in their states had been tainted by fraud;
Pressuring Vice President Michael Pence to refuse to accept the electoral votes in favor of Joseph Biden cast by the electors of the six battleground states; and
Soliciting thousands of Trump supporters (many of whom were known to be armed) to attend a rally in Washington on January 6, 2020 and inciting them with false claims about the election to storm the Capitol in an effort to prevent the U.S. Congress from declaring that Joseph Biden had been elected as the nation’s president.
Specifically, the Select Committee recommended that the following four criminal charges be asserted against former President Trump:
1. Obstructing an official proceeding;
2. Conspiring to defraud the United States;
3. Conspiring to make false statements; and
4. Inciting an insurrection against the United States.
The Select Committee’s recommendation to the Department of Justice prompted three distinct of responses. Republican supporters counseled against commencing criminal proceedings against Trump pointing out that it would be both unprecedented and divisive. These are the same reasons voiced by President Ford in granting a pardon to his predecessor, Richard Nixon. They are, however, badly misplaced when applied to Trump, the nation’s most divisive president who continues to sow division within the nation via his postings on Truth Social, his recently established social media site.
By contrast, Democratic supporters argue that the crimes which the Select Committee attributed to Trump were not only serious but represented an attack on our very system of government. They also contend that allowing such crimes go unpunished would encourage similar, if not worse, behavior on the part of future presidents and would be the death knell of democracy in the United States, if not the world. While this might be hyperbole, it would certainly make a mockery of the concept that in our country there is equal justice under the law.
Former prosecutors within the Department of Justice clearly concede that not seeking accountability for Trump’s actions would set a highly detrimental precedent. Still they warn that initiating an unsuccessful criminal action might result in even worse consequences. Trump and his supporters would surely claim that his acquittal proves that his actions were within the bounds of legality thereby clearing the way for future presidents to emulate them. Former DOJ prosecutors also point out that much of the evidence amassed by the Select Committee would not be admissible in a criminal trial and therefore would not be sufficient to sustain a guilty verdict. In fact, even those actions of the former president for which there is admissible supporting evidence (such as his call to Georgia Secretary of State Bard Raffensberger and his speech at the rally that preceded the attack on the Capitol) were ambiguous in the sense that Trump did not expressly call for the commission of a crime. Moreover, there is some room for doubt even as to whether his constant assertions that the election had been stolen actually caused others to act in an unlawful manner.
To overcome these obstacles prosecutors need supporting testimony from individuals who had direct contact with Trump and who could provide admissible evidence of his complicity. So far none of those individuals have been particularly cooperative. The former prosecutors further warn that a criminal conviction requires that all jurors conclude that there is “no reasonable doubt” that Trump intended for others to act in an unlawful manner. This is a seemingly insurmountable burden when you consider that a third of the nation’s voters still believe that Trump actually won the 2020 election.
To be sure, the biggest problem facing Jack Smith, the recently appointed Special Prosecutor, is the current lack of cooperating witnesses who have had direct contact with Trump. In fact, none of those closely associated with Trump have displayed a willingness to cooperate with the Special Prosecutor’s investigation. This week the Select Committee released transcripts of the testimony of 34 witnesses who repeatedly asserted their Fifth Amendment rights to avoid offering useful testimony and this is in addition to the handful of potential witnesses who simply ignored the Select Committee’s subpoenas. Even Pat Cipollone (Trump’s White House Counsel) who was successful in blocking many of Trump’s efforts to reverse the results of the election gave highly guarded testimony to the Select Committee and invoked executive privilege numerous times to avoid answering questions posed to him.
Such resistance is largely the product of Trump’s having mastered a variety of techniques to get others to perform unlawful acts for him, thereby leaving himself at liberty to proclaim his innocence. He generally accomplishes this by a combination of bribes and threats and has a well-earned reputation for being highly vindictive toward those who oppose him (think about Michael Cohen, Andrew McCabe and the ten Republican members of Congress who voted to impeach him). In fact, he even gets others to convey those bribes and threats as evidenced by Cassidy Hutchinson’s testimony to the Select Committee that she was promised job security within Trump world, which promises evaporated when she cooperated with the Select Committee’s investigation. Because Trump also surrounds himself with people who pledge their loyalty to him (something he is not shy about demanding—ask James Comey), breaking his hold over them will be a truly formidable task for the Special Prosecutor (think about Allen Weisselberg).
Another problem facing Smith and his team of prosecutors is the sheer size and complexity of the conspiracy to overturn the results of the 2020 presidential election. It involved (a) scores of individuals associated with the paramilitary groups that stormed the Capitol, (b) 84 political leaders who acted as fake electors from the battleground states, (c) over 160 members of the U.S. Congress who echoed the “Big Lie” which motivated the Capitol rioters, (d) dozens of White House staff members who helped coordinate the various facets of the conspiracy and who encouraged Select Committee witnesses to refuse to testify or at least minimize their disclosures and (e) roughly two dozen U.S. Senators, House Representatives and lawyers and advisors outside the government who provided assistance to the efforts to overturn the election. This long list does not even include dozens of Secret Service personnel who destroyed their electronic communications on January 6th notwithstanding previous requests that they be preserved and other law enforcement officials who out of loyalty to Trump stood idle while the attack on the Capitol took place.
As a practical matter it also would be virtually impossible to conduct a trial against a large number of defendants as each defendant is entitled to be represented by his or her own attorney and have pre-emptory challenges against potential jurors as well as the right to cross-examine the prosecutors’ witnesses. In addition, this conspiracy had multiple facets which means that the confusion factor for jurors would be overwhelming. Added to these concerns, the trial would take months and simply finding individuals willing to serve as jurors in a trial that might take many months would require a minor miracle.
Thus, it’s not surprising that cases involving criminal conspiracies of this magnitude are invariably broken up into numerous smaller segments. This is what has already been transpiring with respect to the hundreds of individuals who attacked the Capitol on January 6th. While many of them simply pleaded guilty, others like the Oath Keepers and the Proud Boys have or will have their own separate trials. In these situations, it’s the DOJ’s practice to first pursue the foot soldiers hoping that they will plead guilty and provide evidence of the guilt of those who directed their activities in exchange for a lesser penalty. This process has been underway from the very outset of the investigation; however, because the sheer number of those who attacked the Capitol, progress in working up the chain of command has been very slow.
The referral from the Select Committee has put pressure on the Special Prosecutor and his team to proceed more expeditiously. Still, developing the evidence needed to convict those who orchestrated the conspiracy could take months, and in Trump’s case, more likely years. Such a delay could easily extend well past the 2024 elections, a reality that will not be well received by the millions of Americans who believe that the gravity of the charges recommended by the Select Committee cry out for speedy justice. This is particularly true since two years have already passed since the final acts of this conspiracy.
One solution to this dilemma is for the Special Prosecutor to immediately institute a criminal action against Trump for his intentional failure to return to the National Archives the classified documents he transported to his Mar-A-Lago residence. This would be in addition to the current civil proceeding against him for his continuing failure to provide assurance that he no longer retains any materials belonging to the National Archives. Although the sanctions for a criminal charge of having wrongfully taken classified documents are relatively modest (a fine and up to a few weeks in jail), it will serve as a vindication of the proposition that “No man is above the law, not even a former President.” This is a relatively simple case that can be developed and presented quickly. Not only is it a charge that jurors can readily understand, it’s also one that will prove difficult for Trump to blame others for his own transgressions or even deny that he acted with criminal intent.
It is also conceivable that Trump’s actions in commandeering hundreds of classified documents could also constitute a violation of the Espionage Act of 1917. A conviction of that Act would likely require proof that he either disclosed that information to a foreign national or intended to do so. Although violations of the Espionage Act are punishable by death or up to 30 years in prison, at this point there is no indication, much less evidence, that Trump’s actions violated this statute.
Instituting a criminal proceeding alleging that Trump misappropriated classified government documents will not in any way negate the possibility of later charging him for his efforts to set aside the results of the 2020 presidential election. That action could be instituted after the Special Prosecutor’s team is able to obtain the testimony of those individuals who can provide admissible evidence of his participation in the conspiracy to overturn the 2020 election. Toward this end, the team will have to take the Grand Jury testimony of numerous witnesses who refused to provide testimony before the Select Committee as well as those who appeared and resisted testifying by invoking the attorney-client or the executive privileges.
The prosecutors should then assert criminal charges against those witnesses who provided the Select Committee with false testimony and seek to determine those individuals who encouraged or counseled them to do so. That should be followed by criminal charges directed against the latter group seeking to gain their cooperation in return for reduced punishment. Ideally, this should provide the prosecutors with sufficient admissible evidence to assert criminal charges against Trump and those individuals who worked closely with him, including members of Congress who may have joined in planning the efforts to thwart the results of the 2020 Presidential election.
To be sure, this will be a long and pains-taking process but one that is necessary if the Special Counsel’s office is to have any chance of obtaining a guilty verdict that will deter others from abusing their positions in our government.