WASHINGTON. The Justice Department is facing mounting pressure to prosecute former President Donald J. Trump after the House committee investigating the January 6 attack on Wednesday night laid out its case for a potential criminal case, leading Attorney General Merrick B. Garland was directly prosecuted. in the midst of a politically charged debate about how to hold Mr. Trump accountable for trying to cancel the election.
Although Democrats have criticized Mr. Garland for remaining silent on Mr. Trump’s actions, he has sought to insulate the agency from politicization, which he sees as an adjustment to Mr. Trump’s pressure campaigns to force the ministry obey his agenda.
Bringing a criminal case against Mr. Trump is very difficult for federal prosecutors, given the high burden of proof they have to present, questions about Mr. Trump’s mental state, and the likelihood of an appeal against any decision, highlighting the dilemma facing the agency, experts say. .
The department has never said whether it is looking into prosecuting Mr. Trump, though Mr. Garland vowed to prosecute wrongdoing “at any level” while keeping the possibility that federal prosecutors might one day indict the former president.
A Justice Department spokesman declined to comment.
“The DOJ will have to ask this question: Is there a winning case here?” said Norm Eisen, a fellow at the Brookings Institution who served as special counsel on the House Judiciary Committee during Mr. Trump’s first impeachment. “If there is strong evidence but prosecutors don’t think they can get a guilty verdict, they will have to use prosecutorial discretion.”
However, Mr. Eisen said the evidence presented by the committee in support of its argument could be compelling and “supports the idea that Trump and those around him are at risk of federal or state prosecution.”
It was much easier for the committee to claim that Mr. Trump committed a crime in the context of the legal battle that provoked him — a dispute over subpoenas for documents written by a lawyer — than it was for prosecutors to win a criminal case. guilty verdict on the same facts, the lawyers said.
Wednesday’s statement, which says the committee has evidence that Mr. Trump may have been involved in a criminal conspiracy, is the work of three seasoned Justice Department lawyers who are intimately familiar with the complications such allegations create for the agency. .
Losing such a case has far-reaching consequences. This risks seriously damaging the ministry’s credibility, empowering and inspiring Mr. Trump and his allies, and making it harder for federal courts to hold future presidents accountable for wrongdoing.
By publicly sharing their work, the committee has only heightened expectations that Mr. Trump will be held accountable, regardless of whether his evidence meets the standard that a federal prosecutor must uphold in order to achieve a unanimous conviction.
In its court filing, the panel suggested it had evidence to support claims that Mr. Trump committed two crimes: obstructing a formal hearing in an attempt to disrupt the electoral vote count and conspiring with his allies, including conservative attorney John Eastman for the purpose of fraud. United States, working to cancel the election results.
“Evidence supports the conclusion that President Trump,” Mr. Eastman, “and several others entered into an agreement to deceive the United States by interfering with the election approval process, spreading false information about electoral fraud, and pressuring government officials with to change state elections. results and federal officials to assist in these efforts,” the filing says.
However, filing a lawsuit was not necessarily a path to prosecution. The committee made its statement in the context of the legal battle that provoked it, a dispute over subpoenas for documents written by Mr. Eastman. According to legal experts, the standard she must meet to plead crimes is much lower than for prosecutors to secure a criminal conviction.
Specifically, Mr. Eastman has used attorney-client privilege to block the subpoena, and the committee wants the judge to enforce it anyway, except for material related to crime or fraud.
He asks the judge to view the disputed material privately, and to do so, he only needs to convince the court that he has “good faith” grounds for believing that such private viewing “may reveal” evidence that the exception applies – a much lower bar than proving something to a jury beyond a reasonable doubt.
The central theory, put forward by the committee on Jan. 6, is that Mr. Trump was trying to disrupt the official process of congressional approval of the election results by pressuring Vice President Mike Pence to illegally reject electoral votes from certain states.
Samuel Buell, a Duke University law professor and former federal prosecutor, said that while the facts of what happened are mostly clear, the issue of convicting Mr. Trump will focus on proving that he had corrupt intentions — essentially, that Mr. Trump knew that Mr. Pence did not have good legal grounds to do what he demanded.
At trial, Mr. Trump’s defense will have a powerful argument about his mental state: Although government lawyers told him that Mr. Pence had no such authority, Mr. Eastman told him that the vice president could legally do what he wants. . The defense could say that this shows that Mr. Trump genuinely thought he was asking Mr. Pence to do something legal, which leaves the jury with possible reasonable doubt as to whether his intentions were corrupt.
Mr. Buell said that in a typical white-collar criminal case, it’s not uncommon for corporate defendants to point to something their lawyers said to claim they didn’t think they were doing something criminal. According to him, prosecutors sometimes go ahead with such cases anyway, knowing that this will be an argument in court that they will need to try to refute.
But the “enormous political implications” of indicting the former president directly – and a possible 2024 contender – make that calculation all the more risky for Mr. Garland, he said.
The federal charges against the former president will be the first in American history. Although President Richard M. Nixon resigned in 1974 to avoid impeachment, President Gerald R. Ford pardoned him, clearing all criminal charges against him and sparing the Justice Department from prosecution.
A case against a former president will always get bogged down in politics, and that dynamic is especially relevant now given how deeply polarized the nation has become.
If the Justice Department filed a criminal charge against Mr. Trump, his supporters would likely interpret it as President Biden’s hand-picked Attorney General directing the Department to attack the de facto leader of a rival party, especially if they believe Mr. Trump’s lie about that the 2020 election was stolen.
If the Justice Department does not file charges, Mr. Trump’s opponents may see it as brazenly relinquishing its responsibilities. After the election, Mr. Trump continued to declare himself the winner, refuting evidence gathered by his own administration. He pressured government officials to support his false claims and urged his followers to stop the January 6 peaceful transfer of power.
If the Justice Department fails to respond to such overt actions, it risks fueling the idea that presidents and their allies cannot be held accountable for behavior that undermines democracy.
“It’s a completely different situation here because there’s a huge political shell around whether you’re going to press charges against this guy,” Buell said. “On some level, you can’t analyze it in terms of what a prosecutor usually does.”