As the congressional committee examining the Jan. 6, 2021, attack on the U.S. Capitol wraps up its first round of public hearings this week, the Justice Department faces rising pressure to prosecute former President Donald Trump in connection with the bloody assault.
The Justice Department has charged more than 800 Trump supporters involved in the riot and is investigating others tied to the plot.
But it remains unclear whether the department will take the unprecedented step of charging a former president based on the findings of a committee.
“We don’t know whether there will be prosecutions that are going to be a direct result of these hearings,” said William Banks, Board of Advisors Distinguished Professor of Law at Syracuse University.
That is not to say that Trump is not in legal jeopardy. When the nine-member committee held its first televised hearing on June 9, the panel’s vice chairperson, Republican Representative Liz Cheney, pledged to present evidence showing the former president was responsible for orchestrating a “sophisticated seven-part plan to overturn the presidential election and prevent the transfer of presidential power.”
Over the course of seven hearings, the bipartisan panel, made up of seven Democrats and two Republicans, sketched out that plan, offering its findings from more than 1,000 interviews and more than 125,000 documents.
What emerged was a picture of a losing president so possessed with holding on to power that he falsely claimed the election had been stolen despite being told otherwise by his own advisers; prodded the Justice Department to support his falsehood; pressed officials in battleground states to flip votes for him; pressured his own vice president, Mike Pence, to overturn the results; encouraged a mob of his supporters to descend on the Capitol; and, finally, failed to act as rioters stormed the Capitol.
Taken together, the committee’s findings appear to amount to a damning indictment of Trump’s conduct, conjuring the impression that the panel has generated all the evidence prosecutors need to indict the former president.
But whether the Justice Department thinks there is enough evidence to support an indictment remains to be seen.
Even those who think the Jan. 6 committee’s findings warrant criminal charges against Trump caution that the panel’s discovery represents one side of the story.
“The congressional hearing is one-sided in the sense that there was no one to cross-examine any of these witnesses or to seek to check the veracity of their sources and the like,” Banks said.
In a 12-page statement released after the committee’s second hearing last month, Trump made a similar point in his own defense.
“Why can’t they let the countervailing opinion be heard? Why are they hiding evidence from the public and only showing information that favors the Democrats’ tall tale?” Trump wrote, repeating his false claims that the election was stolen and rigged.
To be clear, the committee does not have the power to prosecute Trump or anyone else. That authority rests with the Department of Justice and, ultimately, with Attorney General Merrick Garland.
In an interview with ABC News on July 3, Cheney said that it was possible that the panel would refer Trump’s case to the Justice Department for prosecution, but that the department “doesn’t have to wait” for such a referral.
As the Justice Department continues to investigate people close to Trump, Garland has given little clue as to whether the department is probing the former president for his role in the Jan. 6 attack, saying earlier this year that prosecutors “will follow the facts wherever they lead.”
A spokesperson for Garland did not respond to an email requesting comment on calls for Trump’s prosecution.
Factors in Garland’s decision
In deciding whether to charge Trump, Garland must consider at least three questions, Banks said. The first is whether the Justice Department has enough evidence to win a conviction that would withstand appeal.
Among potential charges Trump could face are “obstructing an official proceeding” for his alleged efforts to block Congress’ vote count on January 6 and “conspiracy to defraud the United States” in connection with various schemes to overturn the results of a presidential election. A third possible charge — inciting a riot or insurrection — has diminished in recent weeks, according to Jonathan Turley, a conservative law professor at George Washington University School of Law.
Banks said the obstruction charge is “pretty straightforward.”
“There’s now quite a bit of documentary evidence as well as witness testimony at the hearings that suggest he was trying to stop Vice President Pence from carrying out his assigned task that day, as well as trying to change the slate of electors,” Banks said.
But some other experts aren’t convinced. Turley, who appeared as a Republican-invited witness during Trump’s first impeachment said the obstruction charge would be hard to make.
“The problem with that is that Trump was calling for people to go to Congress to protest the certification,” Turley said in an interview. “Democrats protested certification. Democrat members voted against certification of Republican presidents. You can’t say that that itself is obstruction.”
More harm than good?
The second question Garland would have to consider is whether indicting a former president at a time when the country is deeply polarized is “good for the country,” Banks said.
“Are we better off as a country to let it be and to try to move on and hope that nothing like this ever recurs?” Banks said. “That’s a tough job, and it’s the attorney general who’s in the driver’s seat.”
It is a question many legal scholars have debated in recent weeks.
Jack Goldsmith, a former assistant attorney general in the George W. Bush administration, wrote in a recent opinion piece for The New York Times that prosecuting Trump “would be a cataclysmic event from which the nation would not soon recover.”
“It would be seen by many as politicized retribution,” Goldsmith wrote.
Banks said he was inclined to agree but became less so after former White House aide Cassidy Hutchinson’s testimony, which many legal experts believe bolstered the legal case against Trump.
“I think even though it will be very painful to experience yet another bout of our institutions with Donald Trump, I think it might be the most important thing that we could do at this time,” Banks said.
Turley said the decision to prosecute Trump should be based on evidence, not its social ramifications.
“The key is that you have to have a strong and unassailable case,” he said. “But if one exists, I don’t think that it makes any sense to give a president some constructive immunity from the criminal code. If the members have the evidence they said they had of a crime by President Trump, I would be the first to call for his indictment.”
A final consideration for Garland is whether, as a member of President Joe Biden’s administration, it is appropriate for him to charge Biden’s political rival, Trump.
“There might be an appearance that if he chooses to pursue an indictment of Donald Trump that it could be politically motivated,” Banks said.
Under Justice Department guidelines, Garland is required to appoint an outside prosecutor if he determines that investigation and prosecuting Trump will “present a conflict of interest” for the department.
“Indeed, that may well be forthcoming, but I think he would only do that if he answered the other two questions” regarding evidence and whether prosecuting Trump would serve the public interest, Banks said.