James D. Zirin

Former federal prosecutor details why Trump’s involvement in the January 6 conspiracy is easy to prove

The Italian author Primo Levi, himself a holocaust survivor, proclaimed that “Every age has its own fascism.” Today, Americans wonder whether we are in our own drift towards an undermining of democratic values, which comes not with a sudden coup d’état, but by a thousand cuts.

The House committee investigating the January 6 insurrection will try to make clear that the evidence points strongly to a political coup, calculated to overturn the 2020 election results and destroy the vote, the very foundation of American democracy.

The committee has already argued in a court filing that Trump and others were part of a conspiracy to defraud the United States. The panel wrote in a legal brief: “The Select Committee ... has a good-faith basis for concluding that [Trump]…engaged in a criminal conspiracy to defraud the United States.”

The Supreme Court has stated categorically that conspiring to defraud the United States includes a plot “to interfere with or obstruct one of its lawful governmental functions.” And the events of January 6 fit the definition neatly.

Conspiracy is an agreement between two or more people to commit an illegal act, along with an intent to achieve the agreement's goal. It has been called a “partnership in crime.”

Conspiracy is an easy crime to prove. The iconic jurist Learned Hand called it the “that darling of the prosecutor’s nursery.”

Conspiracy is proved by acts, declarations, and conduct. Conspiracy may be proved by circumstantial evidence:

“Relevant circumstantial evidence [may] include: the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the relationship among codefendants; mutual representation of defendants to third parties; and other evidence suggesting unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.”

The objectives of the January 6 conspiracy could not be clearer or more unmistakable.

One becomes a member of a conspiracy by joining in its enterprise and making it his own. A conspirator must have knowledge of the conspiracy and participate in achieving its goals.

Members of the conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of the common plot. And statements by one conspirator are admissible evidence against all.

So, if it’s all so easy, why, as many wonder, hasn’t Trump yet been indicted for seditious conspiracy like his follower “Enrique” Tarrio and four of his Proud Boys henchmen? A trial before a District of Columbia jury would seem like a slam dunk for the prosecutors.

The January 6 committee which, as reported in The Hill, has hired a seasoned TV producer to add a measure of theatricality to its presentation, has a “narrow” opportunity to make the case that January 6 was not some spontaneous riot, but a well-organized, well financed attempt to ride roughshod over the will of the people, and retain power in the hands of Donald Trump. Trump was the kingpin. His lieutenants organized the plot. Everything that happened was for his benefit, and subject to his control. He could have called off the assault on the Capitol, and was asked by his advisers, including his son, to do so. In the moment, he waited six hours. The conspirators included not only the pawns who stormed the Capitol that day, but the knights and rooks--like Tarrio and his henchmen who were not present in Washington--and the bishops and queens--the advisers and enablers who fashioned the plot, defined its objectives, and tried to make it happen.

It will be a tough uphill fight for the committee. The public may be bored with January 6. The passage of seventeen months may have diminished its significance in a public consciousness recently traumatized by Ukraine horrors and gun violence at home. The committee can only anticipate a typical Republican distraction from the hard factual record, claims of a witch hunt, partisanship, and repetition of the “Big Lie” that the election was stolen. The distraction will not come from the Republicans who are on the committee, but from those in the GOP, who may not even like Trump, but who want to make the threat to our democracy disappear as an issue for the midterm congressional elections.

It was Trump who refused to concede the election even after he had lost more than 50 lawsuits, brought in both federal and state courts, with many of his legal defeats coming from judges he himself appointed. It was Trump who urged his followers to march on the Capitol with false claims that Biden had stolen the election, and even said he would go with them until he thought better of it. It was Trump who pressured Mike Pence to take illegal steps to block Biden electors, while threatening Pence with the violence of the “Hang Mike Pence” mob which assaulted police officers and created mayhem in the seat of government. And it was Trump who beseeched Republican legislatures to set aside the electors the voters had chosen and replace them with pro-Trump slates.

A political case does not make a partisan witch hunt. Where there is criminality and corruption in politics, it must be brought to account under the rule of law. We have always done this in our history. Why is this time any different?

It is for the committee who must bring out the facts in excruciating detail of Trump’s corruption. It must do so in a way that leaves no doubt that he was at the center of the seditious conspiracy that ensnared Tarrio and his Proud Boys and makes Trump’s indictment ineluctable.

The peaceful transfer of power is something we have always enjoyed in America, and may have always taken too much for granted. We have seen public officials voted in, and others turned out. Other countries have had political coups and military juntas. It can’t happen here. But, it might. As Madeleine Albright warned: [F]ascism can come in a way that it is one step at a time, and in many ways then goes unnoticed until it's too late.

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What may be behind President Trump's refusal to concede the election, despite overwhelming evidence that he lost, is a desire for a pardon that might shield him from federal criminal prosecution once he leaves office. His former White House Communications Director, Anthony Scaramucci, has said as much. In effect, he wants a hardball deal. Joe Biden, to use Lincoln's words, commendably wants to "bind up the nation's wounds," "with malice towards none; and charity for all," and he may just be inclined to give Trump a pass so he can spend the next four years attempting to undermine the government. Indeed, he has started already.

Trump loves the pardon power. Just today, he pardoned his disgraced former national security adviser, Michael Flynn, who twice pleaded guilty to lying to the FBI about his contacts with the Russians. In addition to four Thanksgiving turkeys, he has pardoned only 28 individuals with close political and personal ties to himself, not a staggering number, but presumably, he is not finished yet. We can surely expect a flurry of pardons out of the White House in the 55 days before January 20, 2021.

Of course, Trump might try to pardon himself. Then, he won't need Biden, but legal scholars are uniformly of the view that self-pardon won't stick. "No man may be a judge of his own case," the venerable maxim goes. Some have suggested that he could resign, and have Mike Pence pardon him, but this is far-fetched and politically untenable. Smacks too much of Roy Cohn and Roger Stone.

President Gerald Ford made the right call when he gave Richard Nixon a blanket pardon in August 1974, although it cost him the presidency two years later. The pardon proclamation was silent on just what Ford was pardoning Nixon for. The text read that Ford as President was pardoning Nixon "for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in" from the time Nixon had taken office through the date of the pardon.

Ford, however, left us to speculate on what were Nixon's crimes. Was it the Watergate burglary, was it the cover up, was there obstruction of justice, the catch-all crime where someone tries to put his thumb on the scales of justice?

We are not a banana republic, and of course we should not criminalize policy differences. This would be a bad reflection on the United States. Of course, after the way Trump has behaved in respect of this election, our reputation around the world for upholding democratic values isn't roses anyway.

In Judeo-Christian thought, pardon is unthinkable without confession of sin, which leads to absolution. In "Merrie Olde England" where we found all these arcane concepts, the sovereign would only pardon the subject who confessed his crimes against the state.

Nixon never admitted what were his crimes, but Trump should as a pre-condition of any Biden pardon admit all of his crimes with specificity. If he refuses, no pardon.

There is rampant speculation that Trump may have committed additional crimes in connection with the election. His Oval Office conduct in pressuring Republican legislative leaders from Michigan to delay or revoke certification of an overwhelming vote in their state smacks of sedition and conspiracy to defraud the United States. Their stay at the overpriced Trump International Hotel where they wined and dined sumptuously smacks of bribery. At stake are the very underpinnings of our democracy. It would be shameful enough to do this before the election, but to hold out to Michigan voters that their laws assured them their votes for electors would count, is an abomination, which only gives comfort to the cynic and weakens the faith of the believer.

The Michigan votes will be counted and certified; so will Pennsylvania's, and the people's voice will be heard. "We the people," still have the call in this country. And, the attempt to deny them their franchise borders on criminal conduct.

There are a number of federal white-collar crimes that might be investigated and pursued once Trump leaves office. Among other things, there are financial crimes: money laundering and false financial filings in connection with the payments to porn star Stormy Daniels and Playboy bunny Karen McDougal. There is tax fraud and tax evasion, insurance fraud and election law violations. And there is the obstruction of justice in connection with the Mueller investigation, starting with the firing of Comey, and the other 10 instances cited in the Mueller Report. Mueller declined to prosecute Trump for this conduct because he was a sitting President, and under a Justice Department 1973 legal opinion, this is a no-no. When the Mueller report came out in 2019, more than 700 outraged former federal prosecutors from Republican and Democratic administrations signed an open letter stating that if those same acts had been committed by anyone but the president, they would have resulted in a felony prosecution.

There is bribery possibly involved in his accepting illegal emoluments from foreign governments, whose officials circuited in and out of Washington, stayed at his hotels, played at his golf courses, and purchased his amenities.

Early on, I was of the view that federal prosecutors ought to ignore all of Trump's commercial crimes. Some of them might be hard to prove, and they might have other fish to fry. Besides, the state authorities in New York, New York District Attorney Cy Vance, and Attorney General Letitia James will continue to investigate Trump, because, as everyone knows, they are not bound by a federal pardon.

But, Trump's most recent crimes are too serious to ignore. And to ignore them would be to ignore the rule of law. As The New York Times puts it in a rhetorical question: "Can America Restore the Rule of Law Without Prosecuting Trump?"

The attempt to subvert the election with no evidence is pardonable, but unforgivable. The Hatch Act makes criminal using one's official authority to influence a federal election and the president is not exempt from its provisions.

To ignore the rule of law does not bind the wounds; it wraps them in sackcloth and ashes. Other countries do not believe their leaders are above the law. Sarcozy is standing trial in France for corruption. Israel will proceed to try Netanyahu for his alleged crimes. They believe in an "eye for an eye." As Colonel Alexander Vindman said so stirringly at the impeachment inquiry: "This is America. Here right matters." Here, the people rule.

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