The Future Criminal Case Against Donald Trump
By Neal K. Katyal
“Mr. Katyal is a professor at Georgetown University Law Center, was an acting solicitor general in the Obama administration and is a co-author of “Impeach: The Case Against Donald Trump.”
Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President Donald Trump committed serious federal crimes.
Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.
And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?
Critics of the hearings who say they are too detailed and dry miss the multiple intended audiences. When I argue before the United States Supreme Court, there are several audiences. One is the nine justices. Another audience is the public — both in the courtroom and listeners online. And there’s a third audience: history.
Whatever the immediate outcome, history can render a different judgment. The same is true for this committee. Twenty million people watched the first hearing, but the other two audiences — the immediate decision makers and the eyes of history — potentially will have an even more profound impact on our democracy.
Merrick Garland and high officials at the Justice Department, not nine justices, are the immediate decision makers. Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.
A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.
But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.
Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.
Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what Trump did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public.
Now consider that elusive third audience: the eyes of history. On the one hand, Mr. Garland has to fear being seen as political, and on the other, he knows that the rule of law requires him to bring an indictment if the evidence shows Mr. Trump committed one of the most serious crimes against the United States in our history. Trying to game history is a notoriously fraught enterprise, but it seems certain that if Mr. Garland is to be the first attorney general to bring criminal charges against a former president, having the facts surfaced first by a bipartisan congressional committee would be enormously helpful and provide an evidentiary record that the public today, and historians in the future, could examine.
Of course, critics will complain about the composition of the committee and the like, but those complaints, relatively speaking, are likely to be weaker than they would be if the Justice Department just investigated and prosecuted the case against the president by itself. Here, Congress has a unique voice because the attack occurred on its members, on their soil.
What would criminal charges against Donald Trump look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. Trump, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. Trump’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”
The testimony in last week’s hearing cast immense doubt on that claim. Mr. Trump’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. Trump’s daughter Ivanka testified that she believed Mr. Barr. Mr. Trump’s own election data people told him the same. Mr. Trump might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. Trump persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.
The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.
Here, Mr. Trump faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. Trump believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.
Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. Trump.
The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. Trump’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.
Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.
The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.
But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department. Because history will.“
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