The chorus calling for Attorney General Merrick Garland and the Department of Justice to prosecute Donald Trump for his actions regarding January 6, 2021 grows daily. It argues that Trump’s crimes were the most serious imaginable, that they threatened our democracy, that he is unrepentant and that no one should be above the law.
It’s a bad idea.
Not because Trump wouldn’t get convicted. Any District of Columbia judge and jury would almost certainly indict and convict Trump of any charges presented to them no matter what the evidence. They just won’t do it any time soon. The charges could be treason, sedition, inciting a riot, insurrection and obstruction of government. But each of those charges involves legal issues that would be fodder for litigation, and Donald Trump is a litigious fellow.
The elements of treason are that the defendant owed allegiance to the United States and he betrayed that allegiance by waging war against the United States, or by giving comfort to its enemies. While the events of January 6 did not constitute war, Russia and China undoubtedly took comfort from them. On the other hand, it is doubtful that was Trump’s intent.
The elements of sedition are that the defendant conspired to overthrow the government, or to hinder the operation of law, by force. A conspiracy is an agreement to commit a crime. It is more than the concurrence of desire. A party to the agreement must make an overt act in furtherance of it. It’s not enough that non-parties do. Nor is it a crime to organize and hold a rally, or to contest an election. They are activities protected by the First Amendment.
The elements of insurrection are that the defendant incited rebellion or insurrection against the authority of the United States, where rebellion or insurrection means taking up arms against the United States for the purpose of removing people’s allegiance to the United States. Incite means more than merely advocating or expressing ideas or beliefs such as that the election was stolen. It means urging people to do damage or violence.
The elements of obstruction of Congress are that the defendant corruptly obstructed or impeded, by threats or force, a lawful inquiry by Congress, such as the certification of the results of the 2020 presidential election. Corruptly means acting with an improper purpose such as by making a false or misleading statement. The prosecution would probably be required to prove that Trump knew what he did was improper, that what he said was false or misleading or at least that he consciously avoided learning the truth.
The elements of inciting a riot are that the defendant used a facility of interstate commerce such as the mail or wires, with the intent to organize, promote, encourage or incite a riot. A riot is a public disturbance involving one or more persons that injures people or damages property. The prosecution would probably be required to prove that Trump intended to hurt people or damage property.
The evidence in support of such charges appears to include that Trump was the sitting president and had taken an oath to preserve, protect and defend the constitution. He was aware of his ability to motivate his followers, was repeatedly informed that the election was not stolen, considered a number of options for contesting the election including options that were described as fake, pressured election officials in Georgia to find him votes, pressured Department of Justice officials to declare the election fraudulent, organized the rally, was aware that some of those in attendance were armed and urged them to march to the capitol and be strong. When informed that the mob had broken into the capitol and had gotten violent, he was asked to call off that mob but delayed doing so. When he finally asked the mob to desist, he did so halfheartedly.
Potential defenses to such charges and issues would include illegally obtained evidence, including evidence obtained in violation of executive privilege, not being responsible for the independent criminal actions of third parties, the First Amendment rights of speech, assembly and to petition the government for redress of grievances, a lack of criminal intent and the belief that the election was stolen. The evidentiary basis for these defenses includes Trump’s persistent protestations that the election was stolen.
The purposes of criminal law include promoting respect for law, just punishment, deterrence, protecting the public, correcting the defendant and consistency. The law governing the peaceful transfer of power, such as the Electoral Count Act, is a key feature of our democratic republic and deserves respect. Trump’s conduct was hugely inappropriate and should be discouraged. Others who followed Trump’s lead are being prosecuted and punished. As of July 26, over 800 of the people who attacked the capitol have been charged and over 200 of those have been convicted. If history is any indication however, Trump is unlikely to be deterred.
The Department of Justice’s policy is to only charge offenses for which it has enough admissible evidence to obtain a conviction and sustain it on appeal. It is to charge the most serious, readily provable offense that fits the facts and circumstances of the case, fairly represents the defendant’s conduct, and serves the purposes of the federal criminal code. The most serious offense is generally the one that carries the stiffest sentence. Conviction for insurrection would disqualify Trump from holding federal office.
The median time from commencement to termination of a federal criminal jury trial for the 12-month period ending September 30, 2021 was 24.6 months. Apparently, the District of Columbia did not try enough cases during that period to generate a median time. Pre-pandemic, those numbers were 17.9 months nationwide and 63.1 months for cases in the District of Columbia.
Any case against Donald Trump would be anything but average in terms of evidence, issues, contentiousness, publicity and time. It would never be resolved before the 2024 election. If Trump got elected, any prosecution would likely be suspended. The Office of Legal Counsel has opined that the Department cannot prosecute a president while in office because to do so would undermine his ability to perform his constitutionally-assigned functions.
So, those advocating for prosecution are highly unlikely to achieve their claimed goal of protecting the country from Trump. Instead, to the extent their quest succeeds, it will do more damage. It will increase the chances that Trump runs for president. The prosecution will be a major issue in such a campaign. It will make that campaign even uglier and more dangerous than it would be otherwise. It probably will increase Trump’s chances of getting elected.
Our country is already deeply, bitterly, and evenly divided. While Trump exacerbates that divisiveness, he is not its cause. His adversaries have been relentlessly pursuing him for years with criticism in the media, the Mueller investigation, two impeachments, and the January 6 Committee. It hasn’t made much difference in popular opinion. Criminal prosecution will provoke further recrimination and retaliation and exacerbate our predicament.
We have got to find a way out of this downward spiral. For the good of the country, how about Biden and Trump both agree not to run, and we convene a truth and reconciliation commission to focus on causes and solutions.