Why isn't Attorney General Merrick Garland pressing charges against Donald Trump? Surely the 1/6 insurrection hearings in the House have proven beyond a shadow of a doubt just how deeply Trump was involved with the mob attack on the Capitol and the effort to stop Mike Pence from certifying the election results?
In the LA Times today, Harry Litman provides the obvious answer. It's one thing to convict Trump in the court of public opinion, but in a court of law you need ironclad evidence for a specific, serious crime:
Even assuming that the department could prove any number of offenses on the part of Trump, Garland would not take the unprecedented step of prosecuting a former president unless the charge involved a grave crime against the U.S. Most likely, that charge would be seditious conspiracy. It’s the most serious of any leveled so far against those involved in the insurrection attempt, and for most Americans, it captures the fundamental evil that Trump has wrought.
In the federal criminal code, seditious conspiracy is defined, in part, as two or more people agreeing to “oppose by force” the government’s authority or agreeing “by force to prevent, hinder, or delay the execution of any law of the United States.” It doesn’t matter if they succeed; the crime is in the agreement.
So far, so good. So what happens if Garland charges Trump with seditious conspiracy?
Although with Hutchinson’s account, and that of other witnesses, the committee has presented ample, even voluminous, evidence of Trump’s role in the events of Jan. 6, to date it has produced only circumstantial evidence of the all-important element of an agreement between Trump and a co-conspirator.
The “will be wild” Trump tweet inviting his followers to Washington; Stephen K. Bannon’s declaration that “all hell” would “break loose” on Jan. 6; and Rudolph W. Giuliani’s statement to Hutchinson on Jan. 2 that Jan. 6 would be wild, seconded by White House Chief of Staff Mark Meadows, all speak to the likelihood but not the certainty that Trump conspired with one or more persons to “prevent, hinder or delay” Congress’ certification of the election.
"Likelihood" is not nearly enough. As Litman says, there's an important link missing in the case against Trump: concrete evidence of a second person with whom Trump conspired.
We might yet get that. But Trump has always been very shrewd in the sense of knowing how far he can go in conversations that might become public. "I just want to find 11,780 votes" is a classic example. We all know exactly what he meant. And Georgia Secretary of State Brad Raffensperger knew exactly what Trump was asking him to do. But the words themselves, especially surrounded by Trump's insistence that the election was marred by fraud, keep Trump a hair away from saying something he could be prosecuted for.
My guess is that the same is true about the things he said to his staff and friends about the 1/6 insurrection. When you put everything together, you can conclude that Trump had been hoping for something big; that he egged on the crowd; and that when the crowd attacked the Capitol he did almost nothing to stop them.
But can you find that all important second person who he clearly and distinctly roped into a conspiracy to make sure this would happen? So far we don't have it.
Trump's core offence was to break his oath of office, something he did on countless occasions dating right back to his inauguration. That is not a crime; it's a political offence. The appropriate response is impeachment and removal from office. We all know how those attempts went, thanks to the Republican Party's embrace of anti-democratic authoritarianism.
The DoJ is therefore struggling to devise a criminal response to a situation in which Congress failed to do its duty. The Senate has already declared Trump not guilty of high crimes and misdemeanors, so Garland would be in the unenviable position of trying to convince a jury to declare the Senate got it wrong. He might yet succeed, but he needs more than circumstantial evidence. To date, there has been a wall of silence from those with first-hand knowledge of Trump's actions. They've either refused to give evidence, or taken the fifth.
So all Trump could be convicted of at the moment is trying to persuade Mike Pence to reject enough electoral college votes to get him re-elected - efforts that were unsuccessful. It's highly doubtful that is sufficient to get a conviction.
Here's the reality: if Trump wins the Republican Party nomination in '24, America is screwed. It will prove once and for all that a very large chunk of the population has degenerated into an extremist rabble. And if he doesn't win the nomination, it will open the door at least a crack for the nation to regain its decency. Ultimately, whether Trump gets indicted for what he did in 2020 is a sideshow.
Trump has frontal lobe dementia. There is nothing to run for.
Well trained by Roy Cohn.
"Garland would not take the unprecedented step of prosecuting a former president unless the charge involved a grave crime against the U.S. Most likely, that charge would be seditious conspiracy." Why? What's wrong with, say, conspiracy against the United States? Seems to me Litman is strawmanning, picking a charge that might be hard to make and pretending that's the only option.
Also, too, there seems to be a well documented charge of soliciting a bribe from the government of Ukraine.
It's sad that anyone would think it inappropriate to charge an ex-president with anything less serious than seditious conspiracy (and why not just charge sedition; that doesn't require a co-conspirator).
Presidents should be held to a higher standard than Joe Six-Pack. They are responsible for upholding the law and should be prosecuted without mercy for even minor breaches of the law.
Agree with your take Kevin and that's why I think the Georgia case may be more serious for Trump as a criminal matter.
"Perfect call."
What happened to charges like Obstruction of Justice or Witness Tampering? We have crimes related to interfering with an investigation for a reason. IANAL, but I'm sure there are other charges out there that would stick.
The hugest problem isn’t Trump. It’s that half of America is content—even eager—to have our nation run by a thug.
+1
I don't think Garland is hesitating for the reason quoted. Commenters have bought up a number of charges that could easily be proven: Trump's phone call to Raffensberger is not a conspiracy but it is an attempt to make Raffensberger commit a crime without a shadow of a doubt. Prosecutors have found something to charge in much more dubious cases (Al Capone!) and have shamelessly proceeded and succeeded.
What holds Garland back is Trump's status as a member of an elite club: People who have money and success. People of this sort need to be stray very far from straight and narrow path before they fall "victim" to prosecution. Lots of top level bankers committed crimes before and in the crisis of 2008 and nobody was even charged. You need to be as insistently committing crimes Epstein to get charged--and even then none of the people who frequented him and who knew or at least suspected what was going on was even considered for charges.
By these standards (with which I do not agree, needless to say) Trump goes free on "reasonable doubt". Doubt is almost automatically reasonable when the accused is a member of the elite.