Could Trump face criminal charges over coup attempt?
Speculation mounts after Attorney General drops tantalizing hints in speech
Amidst all the news about the January 6 attack on the Capitol this week, a significant bombshell has not received the attention it deserves.
In his speech on Jan. 5, Attorney General Merrick Garland dropped tantalizing hints that set many tongues wagging: Could the Department of Justice be investigating criminal charges against former President Donald Trump and his most senior advisers?
This set off a round of speculation, but there is plenty of ambiguity in what Garland said and jumping to conclusions may be premature.
First, the DOJ will take a long time to reach that level, if it ever does. Then, it will take many actors – including members of the House select committee investigating the events and hundreds of staff attorneys pursuing lower level cases surrounding the Jan. 6 insurrection.
But, just at it did in the Watergate scandal that bought down Richard Nixon, that which was once unthinkable may suddenly become inevitable.
What is undoubtedly true is that it will be one of the most fraught decisions in the long and distinguished career of Attorney General Garland. But it is his to make.
Speaking Jan. 5 at the Department of Justice Garland summarized the hundreds of criminal cases his department has already filed, dozens of which have resulted in guilty pleas, and others in convictions on relatively minor charges.
The extent of the investigation is vast and unprecedented:
“So far, we have issued over 5,000 subpoenas and search warrants, seized approximately 2,000 devices, pored through over 20,000 hours of video footage, and searched through an estimated 15 terabytes of data,” Garland said.
Later he added:
“The actions we have taken thus far will not be our last.
“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. We will follow the facts wherever they lead.” (emphasis added)
Garland was obviously aware of the criticism that has been leveled at the seeming slow pace of the investigation and prosecutions, and he addressed this head-on:
“Because January 6 was an unprecedented attack on the seat of our democracy, we understand that there is broad public interest in our investigation. We understand that there are questions about how long the investigation will take, and about what exactly we are doing.
“Our answer is, and will continue to be, the same answer we would give with respect to any ongoing investigation: as long as it takes and whatever it takes for justice to be done — consistent with the facts and the law.”
There are different ways to interpret Garland’s remarks and they have been carefully parsed in the days since he delivered them.
But there is a theme emerging that he was signaling a strategy prosecutors in similar complicated cases with multiple suspects and many potential co-conspirators have frequently used successfully in the past: begin with the small fry, then gradually work your way up to the big fish who planned and executed the entire plot.
This could be inferred from statements Garland made at another point in his speech:
“We have charged over 325 defendants with felonies, many for assaulting officers and many for corruptly obstructing or attempting to obstruct an official proceeding. Twenty defendants charged with felonies have already pled guilty.”
It is clear that he was working his way up to more significant cases, because his next comment was revealing: “Approximately 40 defendants have been charged with conspiracy to obstruct a congressional proceeding and/or to obstruct law enforcement. In the months ahead, 17 defendants are already scheduled to go to trial for their role in felony conspiracies.
“In complex cases, initial charges are often less severe than later charged offenses. This is purposeful, as investigators methodically collect and sift through more evidence.” (emphasis added)
Two noteworthy points emerge from this section of Garland’s speech: first, and most important, DOJ believes there was a criminal conspiracy and has sufficient evidence to prove it beyond a reasonable doubt – at a minimum, in 40 cases.
Second, there are more such charges to come.
In an insightful article published in the New Yorker magazine about the same time Garland was speaking on Jan. 5, executive editor David Rohde explored The January 6th Criminal Case Against Donald Trump.
“It’s too early to say what investigators will find, but whether to prosecute the former President is becoming the defining issue of Attorney General Merrick Garland’s tenure,” he wrote.
First, Rohde cautioned that nothing is inevitable about a criminal case against the former president:
“But, based on the evidence made public so far, the unprecedented nature of Trump’s actions – together with the vagueness of laws regarding the certification of Presidential elections, legal loopholes, and his manipulation of others – could allow the former President to escape being criminally charged for his role in events surrounding the attack.”
If anyone can escape criminal charges, there is no one with a better track record on this than the defeated ex-president.
But then Rohde goes on to build the case, anyway.
“Recent statements by the committee chair, Bennie Thompson, and the vice-chair, Liz Cheney – one of only two Republicans on the panel – have raised expectations that the panel will refer Trump to the Justice Department for criminal prosecution.
“Ultimately, the decision about whether to prosecute Trump lies with Garland, a former federal judge who has made restoring public faith in the political neutrality of the Justice Department his core goal.
“The continued defiance of Trump and his allies is forcing Garland to make a decision faced by none of his predecessors: whether to prosecute a former President who tried to subvert an election and appears ready to do so again.”
Meanwhile, the topic was further explored on Jan. 6 in The Guardian by Sidney Blumenthal, former senior adviser to President Bill Clinton and Hillary Clinton.
In an enormously detailed and thoroughly documented article The insurrection is only the tip of the iceberg Blumenthal made a crucial distinction between the events of Jan. 6 and those of the preceding months.
“Behind the insurrection of Jan. 6 was a coup plot that was months in the making, and which involved a dastardly cast of characters,” Blumenthal wrote.
“The insurrection was not the coup itself. It was staged as the coup was failing. The insurrection and the coup were distinct, but the insurrection emerged from the coup.” (emphasis added)
In other words, the coup was a conspiracy many months in the making, coordinated by the most senior administration officials including the president – and when it failed, the dogs of war were unleashed on the Capitol.
Blumenthal’s thesis is very strong, even if his punctuation is weak. The essence of his argument is contained in one VERY long sentence.
“The coup, however, was an elaborate plot developed over months to claim that the votes in the key swing states were fraudulent, for Mike Pence as the presiding officer of the joint session of the Congress to declare on that basis that the certification of the presidential election on the constitutionally mandated date could not be done, to force that day to pass into a twilight zone of irresolution, for House Republicans to hold the floor brandishing the endless claims of fraud, to move the decision to the safe harbor of the House of Representatives, voting by states, with a majority of 26 controlled by the Republican party, to deny both the popular vote and the electoral college vote to retain Trump in office, for protests to breakout at federal buildings, and for the president to invoke the Insurrection Act to impose law and order.”
If it seems like a conspiracy and sounds like one, this is Blumenthal’s intent – and it harks back to what Attorney General Garland was hinting at in his remarks cited above.
“The coup was thwarted by the Justice Department’s rejection of Trump’s strong-arm tactics, the Pentagon’s denunciation of any hint of imposing martial law, the rebuff by state election officials to Trump’s claims of fraud, and, finally, Pence’s refusal to utter his scripted lines,” Blumenthal notes.
“The threat of intimidation, coercion and intimidation hangs over American politics. The coup may have failed, but it rolls on.”
Historical precedent for charges
If the former president is criminally charged, it would not be without historical precedent. In a republic almost as old as the US, France has bought criminal cases against two former presidents: Jacques Chirac and Nicolas Sarkozy, who was sentenced to three years in jail on corruption charges but remains free while his case is on appeal.
A criminal charge against Trump would be a political earthquake, but also it would be only the beginning of a very long process. The attorney general would file charges only if he and his staff are thoroughly convinced they have sufficient evidence to prove them beyond a reasonable doubt.
Despite his hints at this possibility, it is way too early to know with any certainty if this will be where the DOJ investigation leads. But it is a tantalizing prospect.
Those who believe accountability is essential to preventing another attempt at a coup will have to be patient while the wheels of justice slowly turn.
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