Does the Justice Department want to charge Trump? Here's what could happen.
A person familiar with the matter told NBC News there have
been conversations inside DOJ about the implications of pursuing a case against
the ex-president, should it come to that.
June 11, 2022, 5:00 AM CDT
By Ken Dilanian
Liz Cheney’s powerful remarks at Thursday night’s Jan. 6 congressional hearing on
the insurrection at the U.S. Capitol — which sounded a lot like a lawyer’s
opening statement at a criminal trial — have renewed a debate in legal circles
about whether the Justice Department could, and should, prosecute Donald Trump.
With a growing body of evidence that
Cheney and others say points to criminal acts involving Trump’s efforts to
overturn the 2020 election results, Attorney General Merrick Garland may ultimately
be faced with an excruciatingly difficult decision about whether prosecuting a
former president is in the national interest.
A person familiar with the matter
told NBC News there have been conversations inside the Justice Department about
the far-reaching implications of pursuing a case against Trump, should it come
to that. So far, no public evidence has surfaced that the former president has
become a criminal target.
“We will follow the facts wherever
they lead,” Garland said in his speech at Harvard University’s commencement
ceremony last month. His deputy, Lisa Monaco, has confirmed that prosecutors were looking into
the legal ramifications for those who took part in schemes to push slates of
fake Electoral College members declaring Trump the winner of states Joe Biden
won.
Filing criminal charges against
Trump in connection with his efforts to overturn the election “will very likely
spark civil unrest, and maybe even civil war,” said Barbara McQuade, an NBC
legal analyst and a former U.S. attorney.
But, she said, “I think not charging
is even worse, because not charging means you failed to hold someone criminally
accountable who tried to subvert our democracy.”
Either way, “It’s a momentous and
unprecedented decision — not as easy as some folks might imagine it to be,”
said Chuck Rosenberg, an NBC News legal analyst who is a former federal
prosecutor and former head of the Drug Enforcement Administration.
The contours of a possible criminal
case against Trump have been clear to legal experts for some time. A
federal judge said in a ruling in a civil case in March that Trump
“more likely than not” committed federal crimes in seeking to obstruct the
congressional count of the Electoral College ballots on Jan. 6, 2021, citing
two statutes: obstruction of an official proceeding, and conspiracy to defraud
the United States.
At the time, a Trump spokesperson
called the judge's assertions “absurd and baseless.” Trump has consistently
denied all wrongdoing.
In her opening comments, Cheney
sought to lay out all the elements of what she had previously said amounted to
a criminal plot.
“Over multiple months, Donald Trump
oversaw and coordinated a sophisticated seven-part plan to overturn the
presidential election and prevent the transfer of presidential power,” she
said.
As Cheney described it, Trump’s
alleged misconduct went far beyond allegations that he had incited the crowd
that stormed the Capitol on Jan. 6. She said he had committed a fraud on
the American public by advancing bogus election claims, and then tried to get
government officials to act on those false assertions. At key moments,
they refused to do so.
Trump “corruptly planned to replace
the attorney general of the United States so the U.S. Justice Department would
spread his false stolen election claims,” Cheney said, and “corruptly pressured
state legislators and election officials to change election results.”
Trump’s campaign to get Vice
President Mike Pence to reject state electors and block the vote certification
on Jan. 6 “was illegal and it was unconstitutional,” she said.
As she summed up Trump’s conduct,
she said the public should keep in mind that “the Department of Justice is
currently working with cooperating witnesses, and has disclosed to date only
some of the information it has identified from encrypted communications and
other sources.”
That information had been disclosed
in various indictments, but by mentioning it in the context of Trump, Cheney
seemed to hint that it was relevant to the question of his culpability.
Many legal experts said it would not
be necessary to link Trump to the mobs who stormed the Capitol in order to
charge him. They said there was ample evidence that he participated in a
corrupt scheme to overturn the election.
“I can imagine an indictment that
includes all seven schemes,” McQuade said. “But if the DOJ can prove any one of
them, that would be enough.”
In other words, said Rosenberg, “Did
he conspire with at least one other person to obstruct Congress and to thwart
the counting of the electoral votes?”
“There are a lot of actions that are
being laid out that could qualify as conspiracy to obstruct the certification
of the election,” said Randall Eliason, a former federal prosecutor and
currently a lecturer at George Washington University Law School. “This was a
multifaceted conspiracy that actually went on for a couple of months.”
The riot at the Capitol, Eliason
said, “ended up being sort of a useful tool in that conspiracy. Whether or not
that was even part of the initial plan, it certainly became something that
furthered the conspiracy.”
As in most white collar crime cases,
experts said the biggest challenge for prosecutors would be proving that Trump
had criminal intent — that he knew he had lost the election but pursued his
fraud claims anyway.
It’s well-established that a
president who once suggested that people could inject
themselves with disinfectant to deter Covid has embraced some strange
ideas. (He later said he was being "sarcastic.") Trump has said
he genuinely believes the election was stolen from him, and that all his
statements and actions were made in good faith.
But the committee on Thursday night
offered new evidence from Trump’s own campaign advisers that he was told over
and over that he had lost, and that his fraud claims were bogus.
“You had his daughter saying she
believed it,” Eliason said. “If this were going to be a trial, that would be
the whole case. Can you prove Trump’s state of mind?”
McQuade and Joyce Vance, also a
former U.S. attorney and an NBC News legal analyst, said prosecutors could make
use of a legal concept known as deliberate ignorance, or willful blindness, in
which a judge can instruct a jury that it can find that a defendant acted
knowingly if the defendant was aware of a high probability that something was
true but deliberately avoided learning the truth.
“A person cannot ignore a
probability that a fact is true,” McQuade said.
If the investigation ever reaches
the point that federal prosecutors decide they have enough evidence to charge
Trump with crimes — and are all but certain they could win the case — another
layer of decision-making would come into play, legal analysts say.
Garland would have to decide whether
prosecuting Trump would be in the country's best interest.
No former president has ever been
indicted. And a presidential administration of one party charging a
president of another party — no matter how much prosecutors insist the decision
was made on the facts and the law — would create an uncomfortable precedent.
“I don’t think we want to be the
kind of country where this happens often,” McQuade said.
Vance said she believes Garland
would have to decide whether “prosecuting Trump destabilizes the country more
than it puts it upright.”
For a time, it seemed that Garland
had concluded that prosecuting Trump would be a mistake, she said, but “then as
the evidence got worse and worse, at some point they just crossed the Rubicon
and realized, you’ve got to investigate.”
Vance said she agreed with McQuade,
as did Eliason, that the Justice Department should prosecute Trump. Rosenberg
said he wasn’t sure.
One possible wrinkle is whether
Garland would make a final decision about whether to prosecute on his own, or
whether he would consult with President Joe Biden, who has pledged to stay out
of Justice Department matters.
The Justice Department by tradition
makes criminal charging decisions independent of the president, but in cases
that implicate, for example, American diplomacy or national security, the
executive branch can and does weigh in. Biden would have the legal authority
to make the final decision about whether to prosecute, but experts are divided
on whether he should get involved.
“That’s a fascinating question,”
Eliason said. “It feels to me that the president would have to weigh in. We are
talking about this monumental decision. Biden was elected, not Garland. At some
point this becomes a policy question, not strictly a legal one.”
McQuade disagreed: “It would be a
terrible idea. I think you cannot loop in the president. You can give him a
heads up, but I don’t think you consult him. That undermines this idea of an
independent Justice Department.”
If a prosecution went forward, Biden
might face a decision of his own: whether it’s in the national interest for him
to use his pardon power, as President Gerald Ford did in the case of President
Richard Nixon.
Nixon resigned the presidency in
1974 as impeachment loomed, and a federal grand jury was preparing to indict him on charges of
bribery, conspiracy, obstruction of justice and obstruction of a criminal
investigation.
Ford’s pardon was bitterly
criticized at the time, and historians believe it cost him the presidential
election in 1976.
But in 2001, at age 87, Ford was
given the John F. Kennedy Profile in Courage Award.
‘’I was one of those who spoke out
against his action then,” Sen. Edward Kennedy said during the ceremony at the John F.
Kennedy Library. “But time has a way of clarifying past events, and now we see
that President Ford was right. His courage and dedication to our country made
it possible for us to begin the process of healing and put the tragedy of
Watergate behind us.’’
Ken Dilanian is the intelligence and
national security correspondent for NBC News, based in Washington.