Convening of a grand jury in Atlanta to examine allegations that Donald Trump pressured Georgia election officials to reverse the 2020 election outcome is a reminder the former president still faces serious legal questions.
But the most serious may revolve around the question of whether he broke any laws in encouraging his supporters to come to Washington on Jan. 6, 2021, and try to prevent Congress from certifying Joe Biden’s election
The Justice Department has been under strong pressure to take the extraordinary step of filing criminal charges against the former president, most recently by a federal judge handling some aspects of the case. It has reportedly sought transcripts of the House investigation into the events of Jan. 6.
Ultimately, Attorney General Merrick Garland will have to decide if there is enough of a case for his department to prosecute. Harvard Professor Lawrence Tribe and former federal prosecutor Dennis Aftergut recently suggested in The Washington Post that he should assign it to an independent counsel.
That makes considerable sense, though with a requirement to complete the probe before the 2024 election. An independent counsel would ensure a serious investigation but avoid the politically toxic precedent of an administration prosecuting the leader of the opposition party.
Biden picked Garland, best known as President Barack Obama’s Supreme Court nominee blocked by Senate Republicans in 2016, because of the reputation for moderation and nonpartisanship he gained in 25 years on the federal bench.
But he can’t escape the political aspects on an issue on which the country is sharply split. A recent Washington Post poll showed a slight majority favored charging Trump with a crime, but a substantial minority opposed.
For some time, key members of both parties have said that the former president bears responsibility for the insurrection that invaded the Capitol and forced an hours-long delay in the constitutional process of counting the 2020 electoral votes.
“There is no question, none, that President Trump is practically and morally responsible for provoking the events of that day,” Senate Republican Leader Mitch McConnell told the Senate last February after concluding it did not have the authority to convict a former president.
“He bears responsibility for his words and actions,” House GOP Leader Kevin McCarthy told fellow House Republicans five days later, according to CNN, a comment that the California congressman has since said he doesn’t remember.
But practical and moral responsibility doesn’t necessarily mean violation of criminal laws, which presumably requires a stricter standard.
The main federal statute that could be involved in any Trump prosecution says anyone who “corruptly … obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law” by any federal agency or the Congress is subject to a fine and imprisonment up to five years.
The House committee has already suggested it believes Trump violated that law and a second statute citing anyone who conspires “to defraud the United States.” It will undoubtedly air its case in next month’s public hearings and its formal recommendations later this year.
In challenging attorney John Eastman’s claim that lawyer-client privilege exempted him from testifying, the panel said it “has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States.”
The panel’s chairman, Rep. Bennie Thompson, D-Miss., and its vice chair, Rep. Liz Cheney, R-Wyo., said they believe “Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power.”
The federal judge in the case – a President Bill Clinton appointee – agreed.
“Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” wrote U.S. District Judge David Carter.
One potential subject for the hearings is the degree to which Trump cooperated out of public view with those who organized protests between the Nov. 3 election and Jan. 6.
There’s no question he encouraged supporters to gather in Washington. “Big protest in D. C. on January 6. Be there, will be wild,” he tweeted Dec. 20, 2020.
Speaking on Jan. 6 to his supporters, Trump repeatedly urged them to march to the Capitol “to peacefully and patriotically make your voices heard.” He said, “I’ll be there with you,” but went back to the White House.
Testimony from aides and records indicate he spent the day talking to advisers, key supporters and rally organizers. He made no public effort to stop the protesters until several hours after they invaded the Capitol. But some key documents from that day are missing, Bob Woodward and Robert Costa reported in The Washington Post.
Some congressional Democrats have complained that Garland is carrying his nonpolitical approach too far.
“It is important for the department to act and to act with alacrity for the principal reason that we’re trying to prevent another January 6,” said Rep. Adam Schiff, D-Calif., chairman of the House Intelligence Committee.
Garland vowed last January to hold “all January 6th perpetrators, at any level, accountable under law.” And he has defended his cautious approach.
"We are not avoiding cases that are political or cases that are controversial or sensitive," he told National Public Radio in March. "What we are avoiding is making decisions on a political basis, on a partisan basis."
But his conclusions will have substantial political ramifications.
