Donald Trump famously joked that he was so popular with his fans that he could literally get away with murder.
“I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters, he bragged while campaigning in Iowa back in 2016.
Never mind the voters. Here we are, 18 months after his presidency, staring at clear evidence that Trump led a criminal conspiracy to interfere with the 2020 election and the constitutional duties of Congress. He intentionally incited a violent mob that he knew was armed to mount an attempted coup on Capitol Hill.
He knew from his own lawyers’ opposition to his many crackpot schemes that he was breaking the law.
But the US justice department has apparently only just begun to grapple with the debate over whether they can even investigate the former president.
You have to wonder: if Trump did shoot someone on Fifth Avenue, would all those prosecutors still be struggling with the question of whether they could or should indict him?
If you think that’s a ridiculous question, you should ask yourself where the line is drawn for prosecution short of murder. The insurrectionists beat a police officer over the head with a metal bar: doesn’t that count as attempted murder?
What we already know from Tuesday’s House hearings into the January 6 insurrection is that Trump’s participation in the assault on Congress was critical and intentional. It led directly to violence. Trump’s closest aides believed his conduct was reckless, baseless and lawless.
But we kind of knew that at the time, because he said it all on stage and social media. The goons of the Proud Boys and Oath Keepers had to find out somehow, and that meant it all took place in the open. But that doesn’t make it any less criminal.
What we have here is not so much a smoking gun but a blazing inferno that used to be an armory.
Hell, the former president is still apparently trying to tamper with witnesses to stop them snitching on his obviously criminal behavior.
You don’t have to be a federal prosecutor to know that the standard for criminal conviction is beyond reasonable doubt.
Is it reasonable to think that Donald Trump understood the effects of inciting an armed mob to come to a protest that he promised would be wild?
Is it reasonable to think that his incitement was intentional just after an unhinged meeting in the West Wing about overturning the election he had just lost?
Is it reasonable to think that violence and interfering with an election might take place after he urged the mob to go to the Capitol alongside him?
It is obviously beyond reasonable doubt. And it is certainly worth putting to a jury to decide for themselves.
Don’t take my word for it. According to a new Politico/Morning Consult poll, 69% of Americans think Trump bears some responsibility for the attack on police at the Capitol.
Even Brad Parscale, Trump’s own campaign manager, believed Trump had blood on his hands.
What is not reasonable is the current position of the justice department. It’s not at all clear why a former president, who is now a private citizen, lives in some kind of protective bubble that prevents criminal investigation and charges.
According to the New York Times, the justice department was only prodded into “discussing the topic of Mr Trump more directly” because of the recent testimony of Cassidy Hutchinson, the former aide to Trump’s chief of staff, Mark Meadows.
This is a wonderful turn of events. The topic of Mr Trump must be a fascinating discussion in the corridors of prosecutorial power.
Until now, they have been immersed in what they call a “bottom up” approach of snagging the lower level criminals before moving on to the higher-ups, some time in the Ron DeSantis administration.
This awesome legal strategy is presumably not in keeping with the nation’s long-running efforts to fight organized crime or drug cartels. Otherwise they would be jailing street dealers and getaway drivers until the end of time.
Attorney general Merrick Garland insists that the justice department investigates crimes, not people. There is a legal term for this argument, in the context of a conspiracy to commit serious crimes. It approximates to the excrement of male bovines.
The justice department has previously decided that it cannot prosecute a sitting president – not for legal reasons but for logical ones. At some point, the president can intervene to stop his own prosecution so any case will ultimately collapse.
But that’s not the case with Trump. Past presidents don’t run the justice department. They don’t have constitutional protections beyond those of any citizen.
You may acknowledge that no justice department wants to pursue politically charged investigations. But that is a political decision, not a legal one.
Trump’s post-election conduct – pressuring state election officials to find fraudulent votes, plotting to organize fake state electors, inciting a violent mob to storm the Capitol – is so egregiously, obviously beyond the bounds of normal political conduct.
If the current justice department cannot understand that – if it cannot understand how criminal acts are defined and what reasonable doubt looks like – then it has no reason to exist.
Its entire purpose is to enforce the laws, and in this case the laws are designed to protect democracy.
This isn’t a hard call. And it shouldn’t take a congressional committee to prod them out of their sanctimonious slumber.
Almost a century ago, on Valentine’s Day of 1929, there was a massacre of mobsters in Chicago by a gang armed with machine guns who were pretending to serve as police officers. Their leader was sunning himself in Florida, where some criminal masterminds like to spend their down time.
Al Capone was not prosecuted and jailed for his hand in the Valentine’s Day massacre. He was jailed for tax evasion, after refusing a subpoena to appear before a grand jury.
Back in the early days of law enforcement, they could see the importance of investigating both the crimes and the people.
There is just one principle more important than the attorney general’s high-minded approach to the sanctity of prosecutorial power. It’s called defending democracy.
If he doesn’t want to uphold the laws that protect the republic, he should step aside and let someone else do the job.
Richard Wolffe is a Guardian US columnist
