Will Jan. 6 panel's hearings lead to criminal charges against Trump?

WASHINGTON — One of the biggest questions hanging over the House Jan. 6 Select Committee’s carefully orchestrated hearings on the attack on the Capitol is whether the panel’s evidence will result in criminal charges against former President Donald Trump.

The panel’s seven Democrats and two Republicans have made it clear they intend to marshal their evidence to outline a criminal case that puts Trump at the center of a corrupt plot to allow him to stay in office despite losing the popular and electoral vote.

But it is U.S. Attorney General Merrick Garland — who said Monday that he and his attorneys are watching the hearings — and not the committee’s members who will decide whether to bring criminal charges against Trump.

Justice Department attorneys will have to determine how the hearing’s presentations can transformed into criminal charges and whether they could stand up to aggressive challenges by Trump’s legal advocates.

The Justice Department is doing more than watching. It has prosecuted more than 800 of the Jan. 6 rioters, indicted leaders of the far-right Proud Boys and Oath Keepers for seditious conspiracy, and convened grand juries to investigate how Jan. 6 happened.

Department attorneys are negotiating with the Jan. 6 Committee to obtain transcripts of the interviews and depositions it had done, seeking get them as early as next month. 

“The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” Garland said on the riot’s anniversary.

How that takes shape, and what, if any, charges prosecutors will file, remains to be seen.

The department’s investigation remains shrouded in secrecy, and the committee has held only three of what is expected to be six public hearings, with two hearings next week, leaving it far from finished in laying out its case against Trump.

Yet the committee has pointed to two key criminal statutes it believes Trump violated.

Obstruction and conspiracy

On March 28, U.S. District Court Judge David O. Carter ruled in a case brought by former Chapman University law professor John Eastman, who wrote the memo saying a vice president could overturn a presidential election, to keep the Jan. 6 panel from getting his emails.

The committee argued that emails normally protected by law should be released under the “crime-fraud” exception, because Trump tried to obstruct Congress’ session to count electoral votes, and Trump, Eastman and others conspired to obstruct that process.

Those two federal statutes — obstructing an official proceeding and conspiracy to defraud the United States — underlay the committee’s attempt to demonstrate that “Trump oversaw and coordinated a sophisticated seven part plan to overturn the Presidential election.”

After conducting an analysis of those claims, Carter concluded that “more likely than not” Trump did “corruptly attempted to obstruct,” and Trump and Eastman “dishonestly conspired to obstruct” the Jan. 6, 2021, joint session of Congress to count electoral votes.

Carter also wrote that Trump “likely knew” that the plan to disrupt the electoral counting proceeding was wrongful and that Eastman’s electoral count plan was illegal.

Eastman demonstrated his own doubts about his plan’s legality when, after the Jan. 6 Capitol riot a White House lawyer strongly suggested he get a lawyer, he asked Trump lawyer Rudy Giuliani if he could be put on the president’s pardon list.  

Trump’s intent

“It will all come down to what President Trump knew, who he communicated with, and his level of knowledge and intent with regard to some of these schemes that very well may violate federal law,” said Mary McCord, a longtime Justice Department official now at Georgetown University Law Center, in a panel discussion.

The committee has shown that many of his own top administration officials told Trump that he lost the election, that 60 lawsuits challenging the legality of state vote counts failed and that many of his vote-fraud allegations or conspiracies were not true.

But Georgetown law professor Jonathan Turley, a defender of Trump, disputed the idea that Trump ever acknowledged he had lost the election.

“Much of the January 6th hearings seem to be structured along the same lines as the Carter decision, which was, in my view, strikingly conclusory and unsupported in critical parts of the analysis,” Turley wrote on his website.

Carter’s analysis also faced no challenges by outside parties or Trump’s lawyers, he said.

“Judge Carter simply declares that Trump knew that the election was not stolen and thus ‘the illegality of the plan was obvious,’” said Turley. “Trump is still insisting that he believes the opposite.”

Last week, Trump issued a 12-page response to the Jan. 6 Committee’s hearings that did not rebut any of the charges but instead repeated allegations of massive vote fraud.

A key question for prosecutors, lawyers said, will be whether they can prove, by presenting the overall circumstances and inferring it from his statements and conduct, that Trump knew he lost and falsely claimed that he would have won but for vote fraud.

Adversarial process

If Garland does file charges against Trump, his attorneys will not be able to simply take the depositions, video clips showing top Trump officials answering questions, testimony at the hearing or other evidence the Jan. 6 committee is presenting.

“All evidence admitted in a criminal trial would have to stand on its own, in terms of its admissibility under the Federal Rules of Evidence,” said McCord.

“Usually in a criminal case, you don't just introduce depositions, you actually call the witness to take the stand because the defendant has the right to cross examine that witness,” she said.

And prosecutors could show the dramatic video clips of the attack on the Capitol only if they proved it had not been manipulated and that it shows a fair and accurate representation of the actual events on Jan. 6.

Any defense attorney would challenge almost every piece of evidence, she said.

A larger question

But as Garland weighs the question of whether to criminally charge a former president, he might not be simply considering a matter of the law, but also the impact it would have on the country and its citizens.

No attorney general has indicted previous presidents, despite scandals and criminality.

President Gerald Ford, for example, pardoned former President Richard Nixon after he resigned after hearings exposed his criminal acts, saying he offered the pardon in a bid to heal the country.

Vikram Amar, a constitutional law professor and dean of the University of Illinois Law School, said Ford did the right thing.

“Prosecuting a former president for a crime is a big deal for our constitutional democracy,” said Amar. “And so, the question isn't just could there be an indictment and a prosecution. It’s whether that makes sense.”

Noting the deep divide in American politics, Amar said “the question becomes: Are you ever going to be able to convince Trump supporters, who still number a third of the country or more, that this was anything other than the crassest revenge?”

Genevieve Nadeau, counsel with Protect Democracy, a nonpartisan nonprofit group working to prevent an authoritarian America, said, “It's a weighty decision, no doubt. But so too, is a decision not to prosecute a president or other high officials who have violated the law.”

She said, “That sends a message that those folks are above the law, which is something I think our democracy can't tolerate and sustain, particularly at this point.”