Column: There is a gap in the evidence we’ve seen against Trump. We have to rely on the Department of Justice to fill it out.

Criticism of the Department of Justice continues to grow, with detractors saying the Department is too far behind Jan. 6 committee. They want to know why Atti. Gene. Merrick Garland and the Justice Department have yet to file a serious criminal charge against Donald Trump.

These gloomy observations miss at least one important point: in the development of the Jan. 6 clues for the most serious but relevant accusation against Trump. And it is likely that only the Ministry of Justice can fill it.

First, remember that the Department of Justice may be much further away than we know; his work is always largely opaque to begin with. In addition, the department has dealt with hundreds of rioters on the ground, as well as investigating fraudulent elections and other possible crimes related to the 2020 elections and committed by figures from the former president’s inner circle.

It is also important to keep in mind the fundamentally different tasks of a department and a committee. The House hearings aim to present the broad narrative of the Trump team’s attempt to undo President Biden’s victory, as well as the facts to back it up. The Justice Department, on the other hand, needs to develop a legal case consisting of admissible evidence that proves criminal guilt beyond reasonable doubt and, if possible, beyond Republican chicanery.

What exactly is the crime? Here is another important difference between the task of the department and the task of Congress. The work of the committee has given rise to a parlor game of “name it Trump’s crime” among commentators, ranging from manslaughter to the destruction of federal property. It won’t help the Department of Justice.

Even assuming the agency can prove any number of wrongdoings by Trump, Garland will not take the unprecedented step of prosecuting the former president unless the charge involves a felony against the United States. Most likely, this accusation will be a seditious conspiracy. This is by far the most serious of all levels against those involved in the attempted uprising, and for most Americans, it reflects the fundamental wrong done by Trump.

In the federal penal code, sedition is partly defined as an agreement by two or more persons to “oppose the force” of government authority, or an agreement “by force to prevent, prevent, or delay the enforcement of any law of the United States.” . “It doesn’t matter if they succeed; crime in the agreement.

After Cassidy Hutchinson’s testimony at the June 28 hearing, Trump looked like a driving force, if not in the driving force in the deadly fight at the US Capitol. Before we heard Hutchinson’s description of the president’s words and actions that led to the riots, we might have concluded that the source of the violence was limited to the spontaneity of the crowd and the machinations of local terrorists and militia leaders.

But not more. And yet, despite the testimony of Hutchinson and other witnesses, the committee presented sufficient, even voluminous, evidence of Trump’s role in the events of January 1, 2019. 6, to date he has provided only circumstantial evidence of a critical element of the agreement between Trump and the accomplice.

Trump’s tweet ‘goes wild’ inviting his followers to Washington; Stephen K. Bannon’s claim that “all hell” will “break out” on January 1st. 6; and Rudolph W. Giuliani’s statement to Hutchinson of January. January 2nd. 6 would be wild, backed by White House Chief of Staff Mark Meadows, all talk about the likelihood, but not the certainty, that Trump colluded with one or more individuals to “prevent, hinder, or delay” congressional approval of the election.

It is theoretically possible to prove the fact of a seditious conspiracy on the basis of circumstantial evidence, but one can be sure that this will not be enough to prosecute the former president. In the absence of important new revelations from the committee, we must rely on the Justice Department to secure an important element of the agreement.

The traditional and most effective way for prosecutors to bring charges against someone like Trump is to use the cooperation of an alleged accomplice — in this case, perhaps Giuliani, Bannon, or Meadows — with the promise of immunity. The Department has such power; congressional committee – no.

In his summary of Jan. The Select Committee 6 of the House of Representatives has done an excellent job. This gave the country a chance to get an official chronicle of the many schemes that together make up Trump’s sinister ventures between the 2020 election and his congressional confirmation.

But a successful prosecution of Trump and his henchmen will require more than just passing the committee’s findings to the Justice Department.

Justice Department critics are wrong to conclude that Garland’s work has already been done for him in Congress, let alone rebuke him for not yet indicting the former president. Garland deserves the suggestion that, as promised, he is pursuing the rebels “at all levels” and that the department will do the hard work to encourage loyalists to turn against the former president.

Until Garland succeeds, Trump, thanks to the committee’s outstanding work, may be held guilty in the public mind and on the court of history, but he cannot be prosecuted in court.

@HarryLitman