DOJ alumni makes the case for prosecuting Trump’s post-election crimes: 'A prosecution is both winnable and necessary'

Sixteen months into Joe Biden’s presidency, former President Donald Trump continues to be the target of a variety of investigations — from the January 6 select committee to New York State Attorney General Letitia James to Fulton County, Georgia District Attorney Fani Willis. Yet Trump, much to the dismay of his critics on both the left and the right, hasn’t lost his stranglehold on the Republican Party. And more than a few Trump opponents fear that the Trumpified GOP will help him steal the 2024 presidential election if he is the Republican nominee.

To some opponents, Trump and his MAGA movement are the authoritarian nightmare that won’t go away. But U.S. Department of Justice alumni Kristy Parker, in an article published by Just Security on May 23, expresses “optimism” — arguing that there is a strong case for a federal prosecution of Trump in connection with the January 6, 2021 insurrection.

“Since January 6, 2021, a national debate has swirled around whether former President Donald Trump will be investigated and prosecuted for any crimes he may have committed through his efforts to remain in office despite his clear election loss,” explains Parker, who serves as counsel for Protect Democracy. “A growing consensus has emerged among legal experts, scholars and those otherwise concerned with the health of our democracy, that Trump’s actions to overturn the election warrant criminal accountability.”

Parker continues, “That sentiment was significantly bolstered when federal District Court Judge David O. Carter, reviewing an effort by the House Select Committee investigating January 6 to obtain documents from a key witness, found that Trump had ‘more likely than not’ committed federal crimes in trying to interfere with the electoral count proceedings that day. Judge Carter’s pronouncement didn’t break any news about the evidence or the potential crimes Trump committed, all of which have been well-documented. But the impact of a matter-of-fact pronouncement on Trump’s potential culpability from a federal judge was unmistakable.”

Parker, who spent 15 years at DOJ, acknowledges that there is plenty of “skepticism” in the legal community that Trump will face any type of prosecution. But she argues that “a prosecution of Trump is both winnable and necessary despite the known risks,” noting that “more than 280 January 6 defendants” have been charged with violating 18 U.S.C. § 1512(c)(2) — which, Parker notes, “makes it a crime punishable by up to 20 years in prison for anyone who ‘corruptly.… obstructs, influences, or impedes an official proceeding, or attempts to do so.’”

Parker explains, “This discussion will assume that the joint session of Congress to count the electoral votes presided over by Vice President Mike Pence on January 6 was an ‘official proceeding,’ and that section 1512(c)(2) applies broadly to efforts to obstruct such a proceeding…. To prove that Trump criminally obstructed the electoral count proceeding, prosecutors would need to convince a 12-person jury that he acted ‘corruptly.’”

The DOJ alumni lay outs some reasons why a federal prosecution of Trump would make sense even though there would be no guarantee of a conviction.

“The publicly-available facts are succinctly summarized in Judge Carter’s opinion,” Parker observes. “In effect, there was a multi-pronged effort led by Trump and others to prevent the certification of President Biden’s clear electoral victory that culminated in the events of January 6. One of those prongs was a campaign by Trump to persuade various federal and state officials to take actions aimed at undoing Biden’s win and allowing Trump to remain in office…. The second prong was the storming of the Capitol by a violent mob aimed at physically disrupting the constitutionally mandated proceeding to formalize the election results.”

Parker continues, “Trump’s relationship to that mob remains a subject of investigation by the Select Committee, litigants in several civil lawsuits. Disclosure: I and my organization Protect Democracy are co-counsel in one of those cases…. We know that members of the mob, including militia leaders who have been charged with coordinating efforts to storm the Capitol, were drawn to Washington, D.C. by Trump’s lies about election fraud and his December 19, 2020 tweet calling for his supporters to assemble for a rally on January 6 that ‘will be wild.’ We know that many of the rioters breached the Capitol intending to stop (former Vice President Mike) Pence from counting the electoral votes.”

Parker points out, however, that voir dire — the process of jury selection — would not be easy in a Trump prosecution.

“There’s no doubt that an actual Trump trial would be unprecedented and, to some extent, incomparable to anything we have seen in our justice system — and jury selection would be a painstaking process,” Parker writes. “That said, thus far, D.C. juries have had no difficulty separating Trump the politician and the web of his Big Lie from the obvious crimes committed by those who thought they were doing his bidding. And the judges presiding over the hundreds of January 6 obstruction cases have given no hint that they will be unable to prevent a Trump circus from overtaking their courtrooms.”