Here’s What Garland Weighs As He Thinks About Charging Trump

TThe House committee investigating the Jan. 6 attack on the Capitol has shown that Donald Trump knew he had lost the 2020 election, but that he was nevertheless spreading lies about voter fraud as part of a wide-ranging bid to promote Joe’s victory. Biden, pressuring state election officials to change the results, orchestrated an effort to send fake voters to Washington and used multiple tactics to convince Vice President Mike Pence to call Trump the winner, including inciting a mob to go after him.

With each successive hearing, the spotlight on the Justice Department has brightened, as has interest in whether Attorney General Merrick Garland will choose to prosecute a former president. New subpoenas have been issued by federal prosecutors investigating the attack in Georgia and Virginia on Wednesday, the Washington Post reported, a possible sign that the Justice Department is expanding the scope of its case. A separate investigation by Fulton County District Attorney Fani Willis in Georgia has assembled a grand jury and appears to be investigating whether Trump violated state law when he asked Georgian Secretary of State Brad Raffensperger to find enough votes to let Trump win. .

But despite all the bombardment the committee has brought out about Trump’s efforts, legal experts say the threshold the Justice Department must meet before it is willing to prosecute the former president is much higher than many of the public realize.

Filing charges against Trump in connection with the Capitol attack may require proof that he had prior knowledge of specific plans to breach the Capitol and disrupt proceedings, said Solomon L. Wisenberg, a former deputy independent counsel during the Clinton-era Whitewater investigations. “It’s a high bar,” Wisenberg says. “What did Trump do? Did he conspire? Did he know in advance that this would be attempted if he failed to convince Vice President Pence?”

Garland said earlier this year that the Justice Department’s job is not done and that the Department “remains committed to holding all perpetrators of January 6, at whatever level, legally responsible.”

Like most complex criminal investigations, prosecutors have started with what they see as the crime’s front lines, the people who allegedly burst through police lines and entered the Capitol on Jan. 6 with the aim of certifying the election results. stop . The Justice Department has arrested more than 840 people in connection with the attack and has charged hundreds of them. That includes more than 280 defendants charged with corruptly obstructing, influencing or obstructing official proceedings, or attempting to do so. Federal prosecutors have also charged members of the far-right group the Proud Boys with incendiary conspiracy in connection with the Capitol bombing, and that trial is set to take place later this year.

Federal prosecutors may consider whether there is sufficient evidence to charge Trump with complicity in an inflammatory conspiracy, or other charges such as conspiracy to defraud the United States and obstruct official proceedings.

Obstructing congressional proceedings is a crime, Wisenberg says. “So who knew about it and helped it and planned it? That’s the big question and that’s what Garland should be looking at. And if you look at the way these charges are coming up, the Proud Boys and all, I assume they’re building it from the bottom up.”

Melanie Sloan, a former federal prosecutor who is now a senior adviser to the American watchdog group American Oversight, says it will be “shocking” if the Justice Department doesn’t press charges against people around Trump who, as the commission has shown, were orchestrating the effort to nullify the election results. The prosecutions so far have targeted “the lowest-level players, the people who were fully responsible for their actions to enter the Capitol, but were manipulated by much higher-level people,” says Sloan, adding that the department eventually who has to chase “higher people”. also.

“It would be completely wrong if those people were not held criminally responsible for their actions,” she says.

The key to making a case against Trump may be John Eastman, a lawyer who advised Trump after the election and urged that alternate lists of voters be sent to Washington to vote Trump into office. “The best path the DOJ would take would be to build a case against Eastman and then point him towards Mr. Trump,” said Renato Mariotti, a former federal prosecutor.

But as the investigation moves further away from the physical attack on the Capitol, it becomes more difficult to gather evidence to prove criminal intent. For example, it would be difficult for prosecutors to prove that Trump, who is not a lawyer, was able to assess the legality of Eastman’s plan to place fake voters, Mariotti said.

Accusing Eastman of giving legal advice on how to reverse the election results would also be difficult, Wisenberg says. First, advocating a constitutional interpretation, even one that is not widely shared, can be considered protected speech. “I’m very skeptical about attempts to make the very idea of ​​not acting under the Electoral Count Act or advising Vice President Pence that he has the power to refuse certification become a crime,” Wisenberg said.

Echoes from Watergate

Fifty years ago, prosecutors investigating criminal activity in the Nixon administration used the Senate investigation into the abuses of Nixon’s Watergate as their starting point. Richard Ben-Veniste, a former special counsel during the Watergate investigation, says the Jan. 6 commission’s investigation could serve a similar function, providing the Justice Department with valuable information that can expand Garland’s team.

“In Watergate, we built on the evidence gathered by the Senate Committee on Watergate. But we were able to move forward with compelling testimony and, of course, obtaining critical evidence, most notably in the form of presidential tapes,” says Ben-Veniste.

During four dramatic hearings, the Jan. 6 commission has put forward new details that prosecutors are likely to investigate if they decide whether to file a criminal charge against Trump for aiding a conspiracy. Rep. Liz Cheney, a Republican from Wyoming and vice chairman of the committee, said during the first June 9 hearing that when Trump White House staff asked him to call off the violent mob that had entered the Capitol, Trump initially refused, saying the rioters were doing what they should.

The commission has sought to prove that Trump knew he was dishonest when he publicly lied about voter fraud, which could be a factor in establishing Trump’s criminal intent. The dedicated testimony aired during the June 13 hearing showing Trump continued to repeat the lie that he had won the election, even after being told by campaign officials, Acting Attorney General Jeffrey Rosen and Acting Deputy Attorney General Richard Donoghue that his allegations of electoral fraud had been refuted by the Justice Department.

During the commission’s third hearing on June 16, lawmakers revealed evidence Eastman told Trump that Eastman’s own plan to get Pence to block the certification of the electoral college votes in Congress was illegal, according to testimony. The commission also disclosed that Eastman later contacted Trump’s personal attorney, Rudy Giuliani, requesting a presidential pardon. “I’ve decided I should be on the pardon list, if that’s still in the works,” he wrote, according to an email obtained by the House panel.

On June 21, the committee released a taped statement from Republican National Committee chairman Ronna McDaniel saying Trump was on the phone asking the RNC to help collect fake voter lists, showing his direct involvement in that plan. .

The fifth hearing, scheduled for Thursday afternoon, will focus on Trump’s interactions with his Justice Department after the election.

As federal prosecutors investigate the hearings’ revelations, they may be able to dig deeper using methods not available to a congressional committee. “For example,” Ben-Veniste says, “through subpoenas, the department can enforce the testimonies of unwilling individuals and grant immunity if necessary.”

Granting immunity “is a very powerful arrow in the quiver of federal prosecutors,” he says.

Trump’s next move

Amid all the intricate calculations Garland must make as he considers impeaching a former president, he is also grappling with speculation that Trump may announce his intention to rejoin in the coming weeks. Such a move would magnify the potential political fallout should the Justice Department choose to indict Trump, raising concerns that it might become embroiled in an election. It could prompt Garland to appoint special counsel to investigate Trump to avoid the appearance of a conflict of interest.

But Maryland Democrat Jamie Raskin and a member of the Jan. 6 committee, told TIME that such fears should not stop law enforcement officials from looking closely at the crimes Trump may have committed. He suggested that any other course of action would set a horrible precedent. “If that’s the case, lawyers across the country should realize that the first thing to tell their murder and rape clients is to run for president,” Raskin said.

Norm Eisen, a senior fellow at the Brookings Institute who served as special counsel for Trump’s first impeachment by the House, says those convinced Garland will not prosecute Trump are jumping to conclusions. “I think it’s premature to say it’s unwillingness,” he says. “The people who feel it as unwillingness just don’t understand the pace of federal criminal investigations.”

Indeed, the House committee continues to gather more evidence. Rep. Mississippi Democrat Bennie Thompson, who chaired the committee, told reporters on Wednesday that he was postponing a hearing scheduled for Monday on the actions of the Proud Boys and Oath Keepers because the committee needed time to review new material she had. receive. † More hearings will be scheduled for July, Thompson said.

There are also signs that federal prosecutors hope to dig further into what the House committee has uncovered. On June 15, federal prosecutors wrote a letter to Timothy Heaphy, the House Select Committee’s chief investigative adviser, asking the committee to accelerate its plans to provide transcripts of all witness interviews conducted by the committee.

—With coverage by ERIC CORTELLESSA

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