He did it, we know it, but will they take any action against him?
Three former prosecutors write about the January 6th legal case against Donald Trump:
After seven hearings held by the January 6 committee thus far this summer, doubts as to who is responsible have been resolved. The evidence is now overwhelming that Donald Trump was the driving force behind a massive criminal conspiracy to interfere with the official January 6 congressional proceeding and to defraud the United States of a fair election outcome.
The evidence is clearer and more robust than we as former federal prosecutors—two of us as Department of Justice officials in Republican administrations—thought possible before the hearings began. Trump was not just a willing beneficiary of a complex plot in which others played most of the primary roles. While in office, he himself was the principal actor in nearly all of its phases, personally executing key parts of most of its elements and aware of or involved in its worst features, including the use of violence on Capitol Hill. Most remarkably, he did so over vehement objections raised at every turn, even by his sycophantic and loyal handpicked team. This was Trump’s project all along.
Everyone knew before the hearings began that we were dealing with perhaps the gravest imaginable offense against the nation short of secession—a serious nationwide effort pursued at multiple levels to overturn the unambiguous outcome of a national election. We all knew as well that efforts were and are unfolding nationwide to change laws and undermine electoral processes with the specific objective of succeeding at the same project in 2024 and after. But each hearing has sharpened our understanding that Donald Trump himself is the one who made it happen.
As former prosecutors, we recognize the legitimacy of concerns that electoral winners prosecuting their defeated opponents may look like something out of a banana republic rather than the United States of America; that doing so might be viewed as opening the door to prosecutorial retaliation by future presidential winners; and that, in the case of this former president, it might lead to civil unrest.
But given the record now before us, all of these considerations must give way to the urgency of achieving a public reckoning for Donald Trump. The damage to America’s future that would be inflicted by giving him a pass far outweighs the risks of prosecuting him.
They lay out the case, first showing that Trump clearly knew he had lost the election and second that his involvement in trying to overturn it anyway was “systematic, expansive, and extraordinarily personal” — his phone calls, the witness tampering, the attempt to corrupt the DOJ, the pressure campaign on Mike Pence etc. Third, is Trump’s advance knowledge of violence on January 6th and finally his refusal to step in to stop the insurrection once it started. The article provides all the details to back up those conclusions and they are damning.
Their analysis:
On the first point, it is hard to imagine an offense that would more urgently call for criminal accountability by federal prosecution than a concerted and nearly successful effort to overthrow the result of a presidential election. It is an offense against the entire nation, by which Trump sought to reverse a 235-year-old constitutional tradition of presidential power transferring lawfully and peacefully.
The fact that a related state grand-jury investigation is proceeding in Fulton County, Georgia, relating to the part of the plot aimed at the Georgia vote count and certification process does not alter or lessen the urgency of this federal interest. Separate state and federal prosecutions can and should proceed when federal interests are as strong or stronger than the local interest.
Nor can there be any doubt about the crucial need to deter future attempts to overthrow the government. For the past 18 months, and presently, Trump himself and his supporters have been engaged in concerted efforts across the country to prepare for a similar, but better-planned, effort to overcome the minority status of Trump’s support and put him back in the White House. Moreover, if the efforts of the former president and his supporters garner a pass from the federal authorities, even in the face of such overwhelming evidence, Trump will not be the only one ready to play this game for another round.
As many have pointed out, deterrence requires that the quest for accountability succeed in achieving a conviction before a jury—here most likely made up of citizens of the District of Columbia. And the Department’s regulations make the odds of the prosecution’s success an important consideration in determining whether to go forward. In the case of a person who has made a career out of escaping the consequences of his misconduct, this is no small issue for the attorney general to take into account.
But as former prosecutors, we have faith that the evidence of personal culpability is so overwhelming that the case can be made to the satisfaction of such a jury. One of us—Gerson—has tried many difficult cases before D.C. juries with success. As a defendant, Donald Trump would open the door to all sorts of things that wouldn’t come into a normal trial, and the prosecutor could have a field day in argument about how this would-be tyrant tried to overthrow the government that has kept our nation free for two and a quarter centuries. Bottom line: Given what is at stake, even with the risk of a hung jury—leaving room for a second trial—there is no realistic alternative but to go forward.
Any argument that Donald Trump lacked provable criminal intent is contradicted by the facts elicited by the January 6 committee. And the tradition of not prosecuting a former president must yield to the manifest need to protect our constitutional form of government and to assure that the violent effort to overthrow it is never repeated.
Donald Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H. W. Bush. Stuart M. Gerson served as assistant attorney general for the Civil Division of the Department of Justice from 1989 to 1993 and as acting attorney General in 1993. He is a member of the firm at Epstein Becker Green. Dennis Aftergut is a former federal prosecutor and former Chief Assistant City Attorney in San Francisco, currently Of Counsel to Lawyers Defending American Democracy.
All of this sounds very convincing to me. But what do I know? I do have to say that the DOJ’s decision not to charge Meadows and Scavino with contempt of congress strikes me as a bad sign. Even if they both had a claim to executive privilege, which is very debatable, they should have been required to appear and answer questions that did not relate to executive privilege and assert their claim on a case by case basis. But there is such a thing as prosecutorial discretion and I have to hope their reasons for making that decision aren’t because they are being unnecessarily cautious.
But, you know, tick-tock…