This story first appeared at BlumsLaw.
As we embark on a new year, we find ourselves asking the same old question about the disgraced 45th president of the United States: When—if ever--will Donald Trump be brought to justice?
As president, Trump weathered both the Mueller investigation and two impeachment trials. And to this day, he has yet to be charged with a single criminal offense, whether for his attempts to undermine the results of the 2020 election; his role in sparking the January 6, 2021, insurrection; or his sordid history in the private sector as a marketing con man and real-estate huckster.
Understandably, many Americans have become cynical about the prospects of holding Trump to account. Many fear that Trump has forever damaged what remains of our collective commitment to the rule of law.
But all is not lost. Amid the gloom, there are encouraging signs that Trump may finally be headed for a day of reckoning.
The House January 6 Select Committee is diligently investigating the origins of the insurrection, including Trump’s part in inciting the riot at the Capitol that delayed the certification of Joe Biden’s victory. Both Bennie Thompson (D-SC), the committee’s chairperson, and Liz Cheney (R-WY), the ranking Republican, have disclosed that Trump is under consideration for a criminal referral to the Justice Department.
At the same time, state-level investigations against Trump appear to be heating up in New York and Georgia.
While we endure the agonizing wait, investigators have a truly staggering array of potential charges to shift through and analyze. They include:
FEDERAL CRIMES
I. Offenses Related to the Insurrection and the Attempt to Halt or Delay the Certification of the 2020 Electoral College Vote Count.
Inciting an Insurrection, 18 U.S.C. § 2383, maximum penalty: ten years in prison.
Seditious Conspiracy, 18 U.S.C. § 2384, maximum penalty: twenty years in prison.
Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.
Obstructing an Official Proceeding, 18 U.S.C. § 1512, maximum penalty twenty years in prison.
II. Offenses Related to the Phone Call Pressuring Georgia Secretary of State Brad Raffensperger to “Find” Enough Votes to Overturn the State’s Election Results.
Depriving or Defrauding the Citizens of a State of a Fair and Impartially Conducted Election, 52 U.S.C. § 20511, maximum penalty: five years.
Conspiracy to Deprive the Citizens of a State of Rights Secured by the Constitution, 18 U.S.C. § 241, maximum penalty: ten years.
III. Offenses Related to the 2016 Election, the Hush-Money Payoffs to Stormy Daniels and Karen McDougal, and the 2017 “Reimbursements” to Michael Cohen.
Conspiracy to Defraud the United States, 18 U.S.C. § 371, maximum penalty: five years in prison.
Campaign Finance Law Violations, 52 U.S.C. § 30109, maximum penalty: five years in prison.
IV. Offenses Related to the Mueller Investigation, and the Attempts to Halt or Otherwise Derail the Investigation.
Obstruction of Justice, 18 U.S.C. §§ 1503, 1505, 1510, 1512, maximum penalty: ten years.
NEW YORK CRIMES
Offenses Related to Private Business Practices.
Falsifying Business Records, New York Penal Law, § 175.10, maximum penalty: four years in prison.
Tax Fraud, New York Tax Law, § 1806, maximum penalty: twenty-five years in prison.
Insurance Fraud, New York Penal Law, § 176.30, maximum penalty: twenty-five years in prison.
Conspiracy, New York Penal Law, § 105, maximum penalty: twenty-five years in prison.
Racketeering and Organized Criminal Activity, New York Penal Law § 460, maximum penalty: twenty-five years in prison.
GEORGIA CRIMES
Offenses Related to the Raffensperger Phone Call
Solicitation to Commit Election Fraud, Georgia Code § 21-2-64, maximum penalty: ten years in prison.
Tampering with a Voter’s Certificate, Georgia Code § 21-2-56, maximum penalty: ten years in prison.
There is no guarantee, of course, that any of this will lead to an actual arraignment.
While in office, Trump was shielded with temporary immunity from federal prosecution as a result of the Justice Department’s longstanding policy against indicting a sitting president. Although that immunity is gone, Trump would nonetheless be protected by the presumption of innocence, just like any other private citizen, were he to be prosecuted now. And it would represent a historic first for a former U.S. president to be charged with a crime. No prosecutor, state or federal, is going to roll the dice unless they are confident that they could prove Trump’s guilt beyond a reasonable doubt.
Ultimately, the final calls will be made by three prosecutors: Attorney General Merrick Garland on the federal level; Alvin Bragg Jr., the incoming Manhattan District Attorney in January; and Fani Willis, the Fulton County, GA, District Attorney.
Thus far in his tenure as the nation’s top law-enforcement officer, Garland has proven to be upright but overly cautious. Willis is viewed by some observers as being overburdened by an enormous caseload of ordinary prosecutions. Bragg is untested.
Whether any of the three prove to be up to the challenge, one thing is certain: It isn’t sufficient to prosecute the low-level rioters who stormed the Capitol. To restore the rule of law, the leaders of the insurrection must be charged and tried. This includes the ringleader of them all—Donald Trump.
In both New York and federal courts, the basic statute of limitations specifies that charges must be brought within five years of the commission of a felony. In Georgia, the general statute is four years.
The clock is ticking. There is no more time to waste.