Federal prosecutors have more than enough evidence to indict Donald Trump for January 6th: legal experts

The January 6, 2021 insurrection has been investigated not only by House Speaker Nancy Pelosi’s select committee, but also, by the U.S. Department of Justice. The DOJ’s probe has resulted in a long list of federal prosecutions; former President Donald Trump hasn’t been indicted for anything, but legal experts Laurence Tribe and Dennis Aftergut — in an op-ed published by The Guardian on March 16 — argue that the DOJ has more than enough evidence to indict him on federal charges.

The 80-year-old Tribe, a Harvard Law School professor, and former federal prosecutor Aftergut, now 74, explain, “The former president is vulnerable to charges of conspiring to defraud the United States, 18 USC §371, and obstructing a congressional proceeding, 18 USC §1512(c)(2). Regarding §371’s intent requirement, the U.S. Supreme Court has ruled that conspiracies to defraud the United States include plots entered ‘for the purpose of impairing, obstructing or defeating the lawful functions of any department of Government’ using ‘deceit, craft or trickery, or .... means that are dishonest.”

Trump is not only the first president in U.S. history to be impeached twice — he was also the first who lost an election, falsely claimed that he didn’t and tried to throw out the election results. When a violent mob of Trump supporters attacked the U.S. Capitol Building on January 6, 2021, they were trying to stop members of Congress from certifying now-President Joe Biden’s Electoral College victory.

“The mental state required for §1512 is a ‘corrupt’ intent to obstruct, influence, or impede an official proceeding,” Tribe and Aftergut note. “In Arthur Andersen v. United States, the Supreme Court said ‘corrupt’ meant ‘dishonest’ or ‘wrongful, immoral, depraved, or evil.’ The mountain of already public evidence would surely lead a D.C. jury to reject Trump’s defense that that he honestly believed his own ‘Big Lie’ that widespread ballot fraud had deprived him of victory, and therefore, that his intent was innocent.”

Most of the January 6 defendants have entered “guilty” pleas rather than go to trial, but on March 6, a jury found January 6 insurrectionist Guy Reffitt guilty — which, according to Tribe and Aftergut, indicates that a federal prosecution of Trump could work.

“Some observers have expressed fear that a single Trump-supporting juror could ‘hang’ the jury, suggesting that the U.S. Attorney General Merrick Garland might just deem that risk to be too great to be worth running,” Tribe and Aftergut write. “But as the BBC’s observer of Guy Reffitt’s trial noted, every juror there saw through the smoke the defendant was blowing. Jurors are instructed to use their common sense, and the jury in Reffitt did just that.”

The legal experts continue, “A D.C. jury would do the same in a trial of the conspiracy’s central actor. Once all the evidence is expeditiously gathered, with or without the special counsel that we recommend, the Justice Department must indict him.”