The congressional Jan. 6 committee dealt a serious blow to Donald Trump on Monday when it referred him to federal prosecutors for four potential crimes related to the storming of the Capitol.
But it doesn’t mean Trump will ever be charged with a crime, let alone face a trial or prison time.
Prosecutors led by special counsel Jack Smith were already investigating his scheme to stay in power after losing the 2020 election.
They will surely examine the mountain of evidence compiled by the panel along with evidence gathered in their own probe, which includes grand jury testimony that the congressional committee has not seen.
The Department of Justice has a legal obligation to only seek indictments against people whom it thinks it can get a jury to convict, and maintain that conviction on appeal. That’s a much higher bar than the committee faced in deciding whether to refer Trump and others for prosecution.
—Who will decide whether to charge Trump?
A team of federal prosecutors will determine whether they believe the former president should be indicted and on what charges.
Smith, the former Brooklyn federal prosecutor, would then have to decide whether to recommend charging Trump to Attorney General Merrick Garland. Garland has the final say, although he would have to offer specific reasons if he overrules Smith’s recommendation.
—How long will it take to decide whether to charge Trump?
No one knows. The grand jury is still gathering evidence, and there is no sign prosecutors are close to a decision.
—What happens if prosecutors decide to charge Trump?
If Trump is indicted, he would face a criminal trial. If convicted, he could face significant prison time.
—What’s the deal with the 4 potential charges mentioned by the committee?
The Jan. 6 committee referred Trump for prosecution on four charges: obstruction of an official proceeding, conspiracy to defraud the U.S., conspiracy to make a false statement, and inciting an insurrection.
Each of the charges appear to refer to a self-contained aspect of his scheme.
The first charge relates to the physical effort to block Congress from certifying President Biden’s win on Jan. 6.
The second blames Trump for the broader effort to overturn his election loss, effectively preventing America from getting the leader it elected in 2020.
The false-statement charge is tied to the specific effort to get fake slates of pro-Trump electors to claim they were properly elected in some states, claims that involved sworn statements.
The first two charges have been widely leveled at rioters, making it more likely that prosecutors would use it to charge leaders like Trump, according to legal experts.
The insurrection charge is the most sweeping potential crime. The Civil War-era law is rarely if ever invoked, mostly because the U.S. has not seen anything even close to the Jan. 6 attack in its history.
Prosecutors may shy away from charging Trump or others with the statute because there is a paucity of case law related to it.
Many of the white supremacists and other far right-wing radicals charged in connection with Jan. 6 have instead been hit with seditious conspiracy charges.
—Does Trump’s 2024 presidential run affect the decision?
Not directly.
Trump’s decision to mount a comeback White House run has already been cited by Garland as one of the reasons for his appointment of Smith, who has a degree of independence from him.
The Justice Department also has an unwritten rule against taking actions that could swing a major election. That edict has generally been interpreted to bar announcements or indictments in the couple of months before a presidential vote.
Still, there is no legal rule that protects former presidents or presidential candidates from indictment.
—What about the other people named in the report, like Rudy Giuliani?
Aside from Trump, the committee referred right-wing lawyer John Eastman for prosecution, fingering him for his leading role in concocting the legal foundation for the effort to overturn the election results.
Rudy Giuliani, the ex-NYC mayor and Trump lawyer, is also mentioned liberally in the report, which suggests he was part of Trump’s conspiracy, along with White House chief of staff Mark Meadows, ex-Justice Department official Jeffrey Clark and Trump campaign lawyer Kenneth Chesebro.
But by not referring Giuliani and others for prosecution, the committee may be signaling that it does not believe it uncovered enough evidence to justify indictments against them.
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