Legal experts grapple with a hypothetical Trump prosecution

20 July 2022

It remains to be seen whether or not Attorney General Merrick Garland and the U.S. Department of Justice will decide to pursue some type of criminal prosecution of former President Donald Trump based on the January 6, 2021 insurrection and the events that led up to it, but whatever Garland ultimately decides, the January 6 select committee — from Rep. Liz Cheney of Wyoming to Rep. Jamie Raskin of Maryland to Rep. Bennie Thompson of Mississippi — has given him a wealth of material to work with, including the damning testimony of former White House aide Cassidy Hutchinson.

If Garland does pursue some type of prosecution of Trump, it will be an unprecedented event in United States history. Never before has a former U.S. president faced federal criminal charges. Some of President Richard Nixon’s associates went to prison for Watergate-related crimes, including attorney G. Gordon Liddy and former White House Counsel John Dean. But Nixon, after resigning in August 1974, was granted a federal pardon by President Gerald R. Ford.

Journalist David H. Freedman, in an article published by Newsweek’s website on July 20, takes an in-depth look at what a January 6-related federal criminal prosecution of Trump might look like and gets the perspectives of some legal experts — who, Freedman notes, “are quick to point out that no criminal case is a sure thing, and that's triply true for the prospects of tagging Trump with a crime.”

“For one thing, allegations of misdeeds, including fraud, sexual assault and treason, have dogged Trump from the 1970s through his presidency,” Freedman writes. “He has yet to face a criminal trial, let alone conviction. More important, the closest any former U.S. president has ever come to being charged with a crime is Ulysses S. Grant, who was arrested and fined for speeding in a horse-drawn buggy in 1872. Breaking that 150-year streak could shake the already weakened foundations of American democracy.”

Tom Ginsburg, author of the book “How to Save a Constitutional Democracy” and a professor of international law at the University of Chicago, told Newsweek, “Prosecuting a former president is a highly fraught thing to do, especially when a president retains as much support as (Trump) still does. It opens the door to spurious prosecutions of political opponents down the road.”

But veteran trial attorney Michael Conway, who was a counsel for the House Judiciary Committee when Nixon faced an impeachment inquiry in 1974, believes that a federal prosecution of Trump is a very real possibility. Conway told Newsweek, “It's no longer premature to say that Trump could end up in prison. It's a winnable case."

Trump’s defenders, from House Speaker Kevin McCarthy to Fox News’ Tucker Carlson, have been claiming that the January 6 committee’s work is nothing more than a partisan witch hunt. But in fact, the committee has been a bipartisan effort, with House Speaker Nancy Pelosi appointing two right-wing Republicans to it: Cheney and Rep. Adam Kinzinger of Illinois. And both of them have helped the committee present a mountain of evidence against Trump.

“The mostly likely actions against Trump right now are federal charges stemming from his role in the attack on the Capitol, and both federal and state charges concerning his efforts to convince various officials — including then-Vice President Mike Pence — to fraudulently position Trump as the winner of the 2020 election,” Freedman explains. “Federal charges could take several forms, though they would amount to essentially the same things and require the same sorts of evidence. In terms of Trump's contributing in some way to the actions of the mob on January 6, potential charges could include solicitation to commit a crime of violence, incitement of riot and obstruction of Congress — the latter charge applying because the mob was seeking to interrupt the joint session of Congress being held at the time to certify the election results…. Federal charges related to efforts to reverse the election results could take the form of conspiracy to defraud the United States, seditious conspiracy and, again, obstruction of Congress.”

But despite all the evidence, Freedman points out that Garland “has compelling reasons to direct Department of Justice prosecutors to leave Trump alone.”

“For one, time is not on the DOJ's side,” Freedman observes. “Under the best of conditions, moving a high-profile government prosecution from initial indictment to a jury verdict can take two or more years. Trump's hypothetical defense team would almost certainly be able to clog the gears with motion after motion to exclude evidence, block testimony and outright dismiss the case, each of which would then work their way through the system in appeal, in many cases up to the Supreme Court. Meanwhile, Republicans seem headed to take partial, and perhaps full, control of Congress, and Trump is a contender for regaining the presidency in 2024. If Trump were reelected, a prosecution wouldn't survive two minutes into his second term. Trump would show Garland to the door and perhaps seal the deal with a presidential self-pardon.”

Jon Michaels, a law professor at the University of California, Los Angeles (UCLA), warns that Republicans will be out for blood if Garland does decide to proceed with a prosecution of Trump. But Michaels also believes that not prosecuting Trump would set a terrible precedent.

Michaels told Newsweek, “For all we know, a DOJ prosecution announcement is coming, but a lot of people are looking at political calendars and getting worried…. It's frightening to think about what Republicans will do when they're in power if Garland goes after Trump. Once the Democrats use that big gun, Republicans will want to use it, too…. You set a worse precedent by not prosecuting. Republicans have already shown they're ready to go after anything that isn't nailed to the wall. They were talking about the articles of a Biden impeachment two days into his presidency."

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