To Indict and Prosecute?

 

For anyone watching the televised House January 6th Committee hearings, reality – mostly based on video footage and testimony from Trump administration staffers and supporters – clearly shows that Donald Trump incited the Capitol insurrectionists, knew that right-wing militia were gathered at the Capitol before he spoke at the Ellipse rally, condoned the “Hang Mike Pence” effort, refused to intervene to stop the clearly violent insurrection when it mattered and praised the insurrectionists when they departed. Those who broke into the Capitol were often quoted as saying they were just doing what their “true” President wanted to them to do, what they were “invited to do” and thus were “patriots.” The well-built noose to “hang Mike Pence” at the January 6th insurrection is just one many pieces of evidence that the violence was not “spontaneous,” as many have argued.

Trump had clearly invited his supporters to his January 6th rally. “Big protest in D.C. on January 6th,” Donald Trump tweeted on Dec. 19th, just one of several of his tweets promoting the day. “Be there, will be wild!” And his supporters took the President at his word....” At the Ellipse rally, promoting a further march to the Capitol, Trump made it clear both his animosity if Pence did not hand the election back to the states to assure a Trump victory, and that a very riled up Trump crowd had a duty to force the issue, saying, “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” Additional speakers, selected by Trump, echoed the President’s message.

Indeed, uniformed right-wing militia (like the Oath Keepers and Proud Boys) had gathered by the hundreds outside the Capitol building earlier on January 6th. The same militia Trump named in his campaign debate. “Proud Boys, stand back and stand by! But I’ll tell you what, somebody’s got to do something about antifa and the left,” he said. According to members of the Proud Boys, after that speech, recruitment into that extremist group was “exponential.” Trump now had a private army. Some carried guns into the Capitol, but evidence showed that vastly more weapons and munitions were available nearby to be easily accessed “if necessary.”

The falsehood of a fraudulent election was unequivocally clear to almost every lawyer/advisor to the President (people he selected), except an obviously inebriated Rudy Giuliani (facing permanent disbarment for his statements in both New York and Washington, D.C.). Indeed, the illicit pressure that Trump personally imposed on his Vice President to reject the election results and the recording of his phone call to Georgia’s Secretary of State to “find” thousands of votes to reverse the voter tally were almost universally condemned by Trump’s legal advisors.

While a vast pool of loyal voters continues to believe in the “Big Lie,” while a majority of self-declared Republicans believe violent opposition can be justified and as red state after red state has passed voter restrictions and gerrymandered redistricting in reliance on that election fraud, the fact remains that Donald John Trump participated in and incited an insurrection against the government of the United States. A rather classic attempted coup d'état.

After the failed second impeachment trial, Senate Minority Leader McConnell (R, KY) was absolutely clear about Mr. Trump's responsibility for the January 6th insurrection. "There is no question, none, that President Trump is practically and morally responsible for provoking the events of the day," he said, adding that Mr. Trump watched the events unfold on television. "A mob was assaulting the Capitol in his name," he said. "These criminals were carrying his banners, hanging his flags and screaming their loyalty to him." "They did this," McConnell said, "because they'd been fed wild falsehoods by the most powerful man on earth, because he was angry he lost an election." McConnell based his reasoning to vote against a Senate conviction, noting there were available other remedies within the criminal justice system, because he believed it was unconstitutional to convict a president who was no longer in office.

Immediately preceding the impeachment vote, while maintaining that the effort was “political,” House Minority Leader Kevin McCarthy (R, CA) echoed McConnell’s statement above. "The president bears responsibility for Wednesday's [1/6/21] attack on Congress by mob rioters. He should have immediately denounced the mob when he saw what was unfolding.” Quite a far cry from his current denial of the videoed violence and hardly “ordinary citizens engaged in legitimate political discourse,” the official GOP description of the January 6th attack on the Capitol.

The evidence of Trump’s criminal culpability is overpowering. “[A] federal judge [dealing with the issue of attorney-client privilege] raised the legal issue in a March ruling. U.S. District Judge David Carter of the Central District of California wrote that it is ‘more likely than not” that Trump and [Trump advisor] former Chapman University law professor John Eastman ‘dishonestly conspired’ to obstruct the vote certification… At the time, a Trump spokesperson said the judge’s claim was ‘absurd and baseless,’ according to NBC News.” Debra Cassens Weiss writing for the

The harsh reality that may come to pass if the DOJ decides to prosecute, illustrating that no person is above the law, is chilling: “Barbara McQuade, a professor at the University of Michigan Law School and a former U.S. attorney who spoke with the New Yorker and NBC News, said she supports prosecution of Trump for trying to overthrow the election, despite the possible consequences. Prosecution ‘will very likely spark civil unrest and maybe even civil war,’ she told NBC News.” Weiss. A civil war? Violence in the streets? Or a slow merge into autocracy, a fear of over half of American voters. See my June 16th Apathy & Awareness - Voters Reading Ballot Initiatives and Candidate Bios? LOL, LOL, LOL blog for the underlying polling.

But will the obvious “indictment and prosecution” of then-President Trump actually take place? Attorney General Merrick Garland told reporters that he and his prosecutors were watching the January 6th Committee’s telecasts, but he refused to go any farther in his statements. There are no known witnesses who have been called by the DOJ and no indication that there is a bona fide prosecution afoot. Such proceedings are generally not presented to the public during the investigating process, although the DOJ has requested the Committee’s witness list and transcripts, but… Will the January 6th Committee even refer the matter to the Department of Justice to pursue? After all, that committee has no prosecutorial powers. What could the charges be? According to Debra Cassens Weiss, looking at various expert opinions, here a possible list:

• Obstruction of an official proceeding—for trying to stop the certification of the vote Jan. 6, 2021. Prosecutors would have to show an orchestrated plot to try to interfere with certification, and that Trump was part of the plot. Some have asserted that Trump could defend against the charge by saying he genuinely thought that he won the 2020 presidential election and wasn’t acting “corruptly.” But the argument would be difficult after committee testimony showing a number of people informed that Trump he had lost the election…

• Conspiracy to defraud the United States—for conspiring to defraud the American people and interfere with the transfer of power. The charge requires proof that two or more people agreed to obstruct or impede the official functioning of government. A genuine but mistaken belief isn’t enough to defeat a conspiracy charge…

• Seditious conspiracy—which requires proof that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Trump could assert that he never formally agreed with someone else to use force during the Capitol riot, even though he wanted to delay certification of the vote. [Experts have] said this charge would be difficult or unlikely… Trump will argue that he didn’t intend for the riot to happen or know that it would happen, a ‘plausible deniability’ defense.

• Wire fraud—for misleading donors who thought that their money would support legal fees to overturn the election, when in reality, it went to the Save America political action committee and then was distributed to pro-Trump organizations. Such a prosecution would be difficult, [Ken Gross, former associate general counsel of the Federal Election Commission] told NPR. Unless there is evidence that the money was converted for personal use, a case would be too tough to bring, he said… “As distasteful as it is to raise money for a purpose other than what you’re going to use it for, in the political arena, there’s a good bit of latitude given to campaigns because oftentimes, money is used for some other purpose,” Gross told NPR. What’s at stake? Two huge issues: is a sitting president above the law and can our democracy withstand the continuing assault against it?

I’m Peter Dekom, and for an answer, “stand back and stand by.”