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Six weeks ago, the House Jan. 6 committee presented the American people with a tantalizing offer. Over the course of several public hearings, committee chairman Bennie Thompson promised, the panel would show evidence that former President Donald Trump was at the center of a “sprawling, multistep conspiracy aimed at overturning the presidential election” and remaining in power after his term ended.
Thompson’s pledge was initially met with a mixture of curiosity and doubt.
A year and a half after a violent pro-Trump mob had stormed the U.S. Capitol, delaying the congressional certification of the 2020 presidential election results with a riot that left five people dead and more than 150 police officers injured, many wondered what the select committee could possibly reveal about the deadly attack that wasn’t already widely known. Even then, it seemed unlikely that the most damning new evidence would result in consequences for Trump.
Not even the members of the Jan. 6 committee, who widely agree that Trump’s efforts to subvert the 2020 election broke the law, have been able reach a consensus on whether to formally refer the former president to the Justice Department for prosecution.
And while Attorney General Merrick Garland pledged to hold “all Jan. 6 perpetrators, at any level, accountable under law,” the only charges that have been brought against Trump associates so far have been for failing to cooperate with the select committee’s probe. Of the more than 800 defendants who have been charged as a result of the Justice Department’s investigation of the Jan. 6 insurrection, only about 50 have pleaded guilty to felony charges.
Legal experts have debated the issue of whether there would be sufficient evidence for the Justice Department to take the unprecedented step of prosecuting a former president.
“The likelihood that the president broke laws here is extremely high,” Kristy Parker, a former federal prosecutor, said after the select committee’s second public hearing last month.
Parker, who focused on prosecuting police excessive force and hate crimes cases as a deputy chief of the Criminal Section at the DOJ’s Civil Rights Division, now serves as counsel at Protect Democracy, a nonprofit founded after Trump’s election in 2016 whose stated mission is “to prevent American democracy from declining into a more authoritarian form of government.” She spoke to reporters as part of a Protect Democracy press briefing about potential avenues for criminal prosecution stemming from the Jan. 6 committee’s probe.
Specifically, Parker listed obstruction of an official proceeding, conspiracy to defraud the United States, seditious conspiracy and wire fraud among the federal crimes likely to have been committed by Trump and associates, based on what was known at that point.
However, she explained, whether the Justice Department ultimately decides to prosecute will depend not on its ability to prove that a crime took place, but rather if it can obtain sufficient evidence that those involved, including the former president, acted with criminal intent.
“For the kinds of charges we’re talking about here, the department would essentially be required to prove that Donald Trump and his associates knew what they were doing was wrong when they acted,” she said.
Yahoo News spoke with Parker ahead of this Thursday’s primetime hearing, which the select committee has indicated will be the last in this series. She said she thinks the committee “has done an excellent job of surfacing evidence” linking Trump to the violence that unfolded at the Capitol on Jan. 6, but cautioned that this still may not be enough for an indictment.
“I wouldn't think that they're too far from that,” she said, referring to the Justice Department. “But I think there's still more work they would want to do before they got to that point.”
Other legal experts, however, insist that they’ve seen enough.
“The evidence is now overwhelming that Donald Trump was the driving force behind a massive criminal conspiracy to interfere with the official January 6 congressional proceeding and to defraud the United States of a fair election outcome,” former federal prosecutors Donald Ayer, Stuart Gerson and Dennis Aftergut wrote in a piece at the Atlantic last week.
Ayer, who participated alongside Parker at a Protect Democracy press briefing in June, served as principal deputy solicitor general in the administration of Ronald Reagan and as deputy attorney general under George H.W. Bush, while Gerson served as assistant attorney general during the first Bush administration. They highlighted their Republican bona fides, as well as their DOJ credentials, writing, “The evidence is clearer and more robust than we as former federal prosecutors — two of us as Department of Justice officials in Republican administrations — thought possible before the hearings began.”
Specifically, the three former prosecutors argued that “the committee has demonstrated repeatedly that [Trump] knew beyond all doubt that he had lost fair and square,” putting to rest speculation that his campaign to change the election outcome was based on a genuine belief that he was the rightful winner.
Additionally, they wrote, the witness testimony and other evidence presented during the hearings placed Trump solidly at the center of every aspect of his effort to overturn his electoral loss — from his direct calls to state officials to his personal ploy to use the Justice Department to legitimize his bogus voter fraud claims, and his alleged advance knowledge of the danger posed by the crowd on Jan. 6 when he directed it to march on the Capitol.
“Any argument that Donald Trump lacked provable criminal intent is contradicted by the facts elicited by the January 6 committee,” they wrote, concluding that “the tradition of not prosecuting a former president must yield to the manifest need to protect our constitutional form of government and to ensure that the violent effort to overthrow it is never repeated.”
Other initial skeptics, such as law professors Alan Rozenshtein and Jed Handelsman Shugerman, have reached a similar conclusion.
Rozenshtein, an associate professor at the University of Minnesota Law School, and Shugerman, a professor at Fordham University School of Law in New York, had both previously argued that the Justice Department lacked sufficient evidence to indict Trump for his actions on Jan. 6. But in a July 1 post for Lawfare, they wrote that they had been swayed by the unexpected testimony of Cassidy Hutchinson, a former aide to Trump’s chief of staff, Mark Meadows.
In particular, they cited Hutchinson’s account of a conversation that took place moments before Trump delivered his Jan. 6 speech at the Ellipse, in which she said the former president ordered the removal of magnetometers, or metal detectors, that were being used to keep armed rally-goers away from the stage.
“I overheard the president say something to the effect of 'I don’t care that they have weapons, they’re not here to hurt me. Take the effing mags away, let my people in. … They can march to the Capitol from here,’” Hutchinson recalled, explaining that Trump was frustrated by the empty space in the crowd. “He wanted it full, and he was angry that we weren’t letting people through the mags with weapons.”
Before Hutchinson’s testimony, Rozenshtein and Shugerman had independently argued that Trump’s statements on Jan. 6 urging his supporters to “fight” and telling them to march to the Capitol, while based on a lie, amounted to political speech covered by the First Amendment.
“In particular,” they wrote, “we were skeptical that Trump’s speech would satisfy the stringent requirement of Brandenburg v. Ohio, the landmark case in which the Supreme Court held that the government could only criminalize speech advocating unlawful action if ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’”
However, Hutchinson’s account of Trump’s demand to remove the magnetometers undermines that position, they wrote, serving as “additional proof of intent and context, and — crucially — a material act to increase the likelihood of violence,” which “easily distinguishes Trump’s speech at the rally from other kinds of core political speech that should never be criminalized.”
Not only could Hutchinson’s account be used to prosecute Trump for inciting or encouraging a riot under 18 U.S. Code section 2101, but Rozenshtein and Shugerman argued that the former White House aide’s testimony also “bolsters the case” for charging the former president with obstruction of Congress, as well as insurrection and seditious conspiracy.
They aren’t the only ones who were influenced by Hutchinson.
Solomon Wisenberg, a former deputy independent counsel under Ken Starr during the investigation of President Bill Clinton, called Hutchinson’s testimony “the smoking gun,” making a case for Trump’s “criminal culpability on seditious conspiracy charges.”
Meanwhile, John Dean, former White House counsel to Richard Nixon, appears to have been swayed by the “powerful” testimony of Jason Van Tatenhove, a former spokesperson for the Oath Keepers, and Stephen Ayres, a former Trump supporter who was charged with illegally entering the Capitol on Jan. 6.
Dean, who was a key witness in the Watergate investigation, predicted that “Trump is in trouble” after hearing Van Tatenhove and Ayres testify before the committee last Tuesday.
“I think a criminal case is going to come out of it,” Dean said on CNN following the committee’s seventh hearing. “And I don’t see how … prosecutors at the Department of Justice can’t take a lot of this evidence and use it. A lot of these people who are involved in this are going to be in front of a grand jury, if they’re not already.”
This week, MSNBC’s Rachel Maddow reported that Garland had issued a memo in May extending a 2020 policy first introduced by former Trump Attorney General Bill Barr, which requires federal investigators to obtain written approval from the attorney general for any investigations into a presidential candidate or their staff. Although Trump has strongly hinted that he intends to run for president again in 2024, he has yet to formally announce his candidacy.
A DOJ spokesperson did not immediately respond to a request for comment on the Garland memo or whether it applies to Trump.
Still, since the committee began its latest round of public hearings, there have been some signs that the Justice Department may be expanding the scope of its Jan. 6 inquiry. For example, the department renewed an earlier request for the panel’s interview transcripts, and issued several new subpoenas, apparently in relation to its ongoing inquiry into the potentially fraudulent effort to use fake pro-Trump electors to prevent certification of Joe Biden’s Electoral College victory. Last month, federal agents also searched the home of former DOJ official Jeffrey Clark, who allegedly tried to help Trump use the department to help subvert the election.
Meanwhile, in Georgia, Fulton County District Attorney Fani Willis has empaneled a special grand jury and subpoenaed several Trump advisers, including his attorney Rudy Giuliani and Sen. Lindsey Graham, R-S.C., as well as a number of prominent Georgia Republicans, as part of her fast-moving investigation into Trump’s attempt to meddle with the election in her state. Willis told Yahoo News last week that she is considering calling Trump himself to testify to the special grand jury.
As the select committee wraps up this series of hearings, Parker argued that the real question is not whether the evidence it has presented is sufficient to indict Trump, but whether it’s enough to merit a criminal investigation of which the former president is the subject. “There’s more than enough evidence” for that, she said.
“I think sometimes we get so saturated with the coverage of this that we forget to step back and take note of just how incredible it is that we are hearing and seeing this amount of evidence of potential criminality on the part of the president of the United States that was aimed at overturning the results of an election,” she said. “I mean, criminality aimed at the very heart of our democratic system of government.”
Parker noted that one of the factors the Justice Department manual instructs prosecutors to consider when deciding whether to prosecute a criminal case is the seriousness of the offense.
“I’m not sure you could find a more serious offense than attempting to destroy American democracy,” she said, adding that federal prosecutors regularly bring charges against everyday Americans for arguably much less serious offenses, such as using or selling drugs or trying to enter the country illegally.
Parker suggested that if the Justice Department fails to prosecute Trump, “the most powerful person in the country,” for crimes “aimed at destroying our democratic system of government,” while continuing to bring charges against average citizens for these kinds of lesser offenses, it would send a “terrible and possibly even fatal message.”
“The criminal justice system in a democratic system is basically a form of a social contract. We all agree to be bound by the laws on the theory that the laws will be enforced fairly as to everyone,” she said. “That idea is seriously undermined when Joe and Jane Average can be charged with crimes but the president of the United States isn’t charged for the most serious thing you can imagine somebody doing.”
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