Pressure on Justice Dept. as Jan. 6 Panel Lays
Out Case Against Trump
Building a criminal case against the former president
is very difficult for federal prosecutors, experts say, underlining the dilemma
confronting the agency.
Katie
BennerCharlie Savage
By Katie
Benner and Charlie Savage
March 3,
2022
https://www.nytimes.com/2022/03/03/us/politics/trump-justice-department-january-6.html
WASHINGTON
— 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.
“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.
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.
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.
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.
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.
If the
Justice Department does not respond to such overt acts, it risks fostering the
idea that presidents and their allies cannot be held accountable for behavior
that undermines democracy.
“Here, it’s
a totally different situation because there is an enormous political envelope
around whether you would charge this guy,” Mr. Buell said. “At some level you
can’t analyze this in terms of what a prosecutor would normally do.”
Katie
Benner covers the Justice Department. She was part of a team that won a
Pulitzer Prize in 2018 for public service for reporting on workplace sexual
harassment issues. @ktbenner
Charlie
Savage is a Washington-based national security and legal policy correspondent.
A recipient of the Pulitzer Prize, he previously worked at The Boston Globe and
The Miami Herald. His most recent book is “Power Wars: The Relentless Rise of
Presidential Authority and Secrecy.” @charlie_savage • Facebook
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