On the possibility that Trump will be prosecuted

Yesterday, the Washington Post breathlessly reported that the Justice Department is investigating Donald Trump’s actions as part of its criminal probe of efforts to overturn the 2020 election result. The Post said it has “previously written that the Justice Department is examining the conduct of John Eastman, Rudy Giuliani and others in Trump’s orbit, but the degree of prosecutors’ interest in Trump’s actions has not been previously reported.”

The Post did not say Trump is a target of the DOJ’s investigation. And it is natural that if the Department is investigating Eastman and Giuliani, it will look into aspects of Trump’s conduct. Eastman and Giuliani are being investigated for their efforts on behalf of Trump.

However, Attorney General Garland didn’t discourage anyone from believing the Department might prosecute the former U.S. president. He claimed that the DOJ pursues justice “without fear or favor” and that:

We intend to hold everyone, anyone, who was criminally responsible for the events surrounding January 6th, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable — that’s what we do. We don’t pay any attention to other issues with respect to that.

By “that,” Garland means the obvious negative consequences for the nation of indicting a former president and current leader of the out-of-power political party. This is what sometimes happens in banana republics. It has never happened in the U.S., and not for lack of criminal conduct by a president.

Is Garland’s rhetoric a serious statement of prosecutorial intent or just posturing aimed at impressing the Democratic base and journalists like the ones who wrote the Post’s story? I don’t know.

However, I disagree with Garland’s claim that the DOJ invariably pursues justice “without fear or favor” — both as a general matter and when it comes to Donald Trump. In my view, the Justice Department wasn’t pursuing justice even-handedly in 2016 when it spied on the Trump campaign and pursued baseless conspiracy theories about the Republican nominee’s alleged ties to Russia.

Has the DOJ’s approach to Trump changed after four years of a presidency its leaders and most of its career employees despised? I don’t think so.

The DOJ’s leadership consists of hardcore anti-conservative partisans like Vanita Gupta, the associate Attorney General. Its rank-and-file, like those of virtually all federal government agencies, includes many fair-minded, conscientious bureaucrats, but also many committed self-righteous leftists and Trump-haters of the Peter Strzok variety.

At this stage of his life, Garland himself probably fits the description of hardcore anti-conservative and Trump-hater. But even if he doesn’t, the Attorney General has shown no willingness to stand up to the DOJ left. For example, he backed investigating parents who were trying to express their views about attempts by public schools to indoctrinate their children, and misled Congress about the matter.

The Post identifies two theories it suggests the DOJ might use to prosecute Trump. One is “seditious conspiracy and conspiracy to obstruct a government proceeding.” The other the Post describes as “fraud associated with the false-electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim that the election was rigged and votes were fraudulently cast.” Or with whatever else creative DOJ lawyers might come up with.

As to obstructing a government proceeding, there’s no doubt that Trump didn’t want the certification of Biden’s victory to go forward. But the question is, or ought to be, what he did to prevent it and with what intent.

I’ve watched every minute of the January 6 Committee hearings. The evidence presented shows that Trump called for protests against the election results being certified, including a march to the Capitol, and asked Mike Pence not to certify them.

I’m disgusted that Trump contested the election for as long as he did, on the evidence (or lack thereof) presented to him. And I’m appalled by some of the ways he went about it. But I don’t see how, in a free country, calling for a march to the Capitol and asking Pence not to certify the election results can be the basis for a criminal prosecution.

If the evidence showed beyond a reasonable doubt that Trump used language he intended to cause protesters to invade the Capitol for the purpose of obstructing the vote count, that would be a different matter. But the evidence presented at the hearings doesn’t establish this.

It may be that Trump wanted the mob to enter the Capitol violently. But by calling on the protesters to march “peacefully,” Trump, characteristically, said enough to cover his backside — at least for purposes of assessing whether, beyond a reasonable doubt, he committed a crime.

A “fraud” prosecution based on proposing alternative electors and pressuring the DOJ would itself be fraudulent, in my opinion. Testimony at the hearings shows that Trump wanted the DOJ to “just say the election was corrupt.” But Trump believed the election was corrupt, and I have little doubt that, like in most important elections, there was some level of corruption associated with it.

In a free country, a president should be entitled to state his opinion about an election and to ask the Justice Department to express agreement with that opinion.

As for the “false electors,” as I understand it they were simply a mechanism through which the results of the election could be challenged. To my knowledge, there was no claim or pretense that these were the electors designated by the state legislatures to cast votes on January 6. In that case, where’s the fraud?

Unless I’m misanalyzing these issues (a possibility since I’m no expert in criminal law) or there is much better evidence of criminality than has been presented by the Committee, the facts do not justify the unprecedented step of prosecuting a former president and current leader of the out-of-power political party. With the caveats just stated, if the DOJ were to prosecute Trump, one would have to view it as a politically-motivated persecution, rather than a good faith effort at law enforcement.

Such a prosecution would give rise to mass protests. The protests would be justified.