Judging Trump? Merrick Garland Leads Discreet Prosecution

House Committee for Jan. September 6, 2021, insurgency whose hearings resume this weekhas provided impressive evidence that could allow prosecutors to argue that former President Trump committed crimes when he tried to cancel the 2020 election.

Thanks to the hearings, we now know more clearly that Trump was trying to intimidate Vice President Mike Pence into blocking the count of electoral votes in Congress, trying to get Justice Department officials to declare the election rigged when they knew it wasn’t and stayed on the sidelines. with seeming approval, while his armed supporters sacked the Capitol.

All of this has left many ordinary citizens — and not just Trump haters — wondering why not Atti. Gene. Merrick Garland pursue this person?

The answer is both complex and simple. Accusing a former president of trying to disrupt the presidential election is harder than it sounds.

“This is definitely not a slam dunk,” Paul Rosenzweig, a former federal prosecutor (and anti-Trump Republican), told me last week. “This will require tough decisions.”

The problem is not lack of evidence. former Trump aides who testified before a House committee and were interrogated by the FBI took care of it.

The problem, according to Rosenzweig and other former prosecutors, is that convincing jurors that Trump is guilty beyond a reasonable doubt will still be difficult, especially when a former president armed with good lawyers can challenge that evidence.

“We know from surveys that around 30% Americans believe that Trump did nothing wrong in January. 6,” Rosenzweig said. “Thirty percent of the jury is three or four people. I think getting a unanimous condemnation would be next to impossible, even in a liberal DC.”

He warned that a lawsuit that ended with Trump’s acquittal would backfire.

“Not only would that get Trump off the hook,” he said, “it would also give him impunity and an aura of invincibility.”

Others disagree. Donald B. Ayer, another former Republican prosecutor, thinks a conviction is possible. “Trump was ready to kill Mike Pence,” Ayer said. “You tell this story to the jury and I think you win.”

But Ayer notes that Justice Department rules require prosecutors to believe they have a high probability of securing a conviction before they can file charges. By that standard, what Garland does is right and in line with the rules. He conducts an aggressive investigation, but pursues cautiously.

Justice Department lawyers served subpoenas on Rudolph V. Giuliani and John Eastman, lawyers who advised Trump on his schemes, and pro-Trump activists who set up fake “alternative voter” rolls in swing states like Arizona and Georgia.

Last month, FBI agents ransacked the Virginia home of Jeffrey Clark, a former senior Justice Department official who convinced colleagues to support Trump’s allegations of election fraud.

And the prosecutor’s office charged the leaders of the right-wing militia “Proud Boys” and “Keepers of the Oath” with incitement to sedition in connection with the January events. 6.

All this suggests that the Justice Department is applying the traditional model of organized crime in its investigation: chasing small fish to build cases against superiors.

However, Trump will be able to argue in his defense that he did not have criminal intent, saying that he either sincerely believed that the election results were stolen or did not know that interfering in the affairs of Congress could be against the law.

The most likely charges against Trump are conspiracy to defraud the United States, a broad statute that covers virtually any illegal interference with government, and conspiracy to obstruct official proceedings.

There is also a broader political issue surrounding the decision to indict the former president, an action that no prosecutor has ever taken before: will it be in the national interest?

“Indicting a past and possible future political opponent of the current president would be a catastrophic event,” Jack Goldsmith, a former Justice Department official in the George W. Bush administration, warned last month. “Many will perceive this as politicized retribution. It would take many years for the prosecution to finish… [and would] profoundly affects the next election.”

Other lawyers, both Republicans and Democrats, strongly disagree.

“It is imperative that Trump be held accountable, if only to deter him and future presidential candidates from trying to do it again,” said Norman Eisen, a former Obama administration official. “It would be terribly dangerous to allow a former president to go free after committing acts for which someone else would be charged.”

These debates are not a convincing argument against Trump’s prosecution. But they add to the list of reasons why Garland should avoid making hasty judgments while his investigators are doing their job—and by the looks of it, that’s exactly what he’s doing.