Prosecute Trump? Merrick Garland is prosecuting cautiously

The House Committee on the Jan. 6, 2021, rioting, whose hearings resume this week, has presented impressive evidence that could allow prosecutors to argue that former President Trump committed crimes while trying to overturn the 2020 election to fall.

Thanks to the hearings, we now know more clearly that Trump tried to get Vice President Mike Pence to block the counting of congressional votes and tried to get Justice Department officials to declare the election fraudulent even though they knew it was This was not the case, and stood by with apparent approval while his armed supporters sacked the Capitol.

All of this has left many ordinary citizens — and not just Trump haters — to wonder: Why isn’t Atty like this? General Merrick Garland is following this man?

The answer is both complicated and simple. Blaming a former president for attempting to evade a presidential election is harder than it looks.

“It’s definitely not a slam dunk,” Paul Rosenzweig, a former federal prosecutor (and anti-Trump Republican), told me last week. “It will require tough decisions.”

The problem is not the lack of evidence. Former Trump aides who testified before the House Committee and were questioned by the FBI made sure of that.

The problem, Rosenzweig and other former prosecutors said, is that it will still be difficult to convince a jury that Trump is beyond a reasonable doubt guilty — especially if the former president, armed with good lawyers, can challenge that evidence.

“We know from the polls that about 30% of Americans believe Trump did nothing wrong on January 6,” Rosenzweig said. “Thirty percent of a jury is three or four people. I think even in the liberal District of Columbia it will be almost impossible to get unanimous conviction.”

And a trial that ends in Trump’s acquittal, he warned, would backfire.

“Not only would it have the effect of giving Trump impunity,” he said, “it would give him impunity and an aura of invincibility.”

Others disagree. Donald B. Ayer, another former Republican prosecutor, says a conviction is possible. “Trump was willing to have Mike Pence killed,” Ayer said. “You tell that story to a jury, and I think you win.”

But Ayer notes that Justice Department regulations require prosecutors to believe they have a high probability of winning a conviction before they can press charges. By this standard, what Garland does is both correct and compliant. He investigates aggressively – but pursues cautiously.

Justice Department attorneys have served subpoenas against Rudolph W. Giuliani and John Eastman, attorneys who advised Trump on his plans, and pro-Trump activists who organize bogus lists of “alternative voters” in swing states like Arizona and Georgia to have.

Last month, FBI agents searched the Virginia home of Jeffrey Clark, a former senior Justice Department official who has been urging colleagues to agree with Trump’s allegations of voter fraud.

And prosecutors have charged leaders of the right-wing Proud Boys and Oath Keepers militias with 6 January-related seditious conspiracy.

All of this suggests that the Justice Department is following a traditional organized crime model in its investigations: pursuing small fish to build cases against those in charge.

Despite this, Trump will be able to argue in his defense that he lacks criminal intent, either claiming that he genuinely believed the election was stolen or that he was unaware that interference in Congress was against the law could violate.

The most likely charges against Trump are conspiracy to defraud the United States, a broad law that covers almost any unlawful interference in government business, and conspiracy to obstruct an official process.

There is also a broader political question surrounding a decision to indict a former president, an action never before taken by a prosecutor: would it be in the national interest?

“The impeachment of a past and possible future political opponent of the current president would be a catastrophic event,” warned Jack Goldsmith, a former Justice Department official in the George W. Bush administration, last month. “It would be seen by many as politicized retaliation. The indictment would take many years to complete… [and would] heavily influence the next election.”

Other attorneys, both Republicans and Democrats, strongly disagree.

“It is important that Trump be prosecuted, if only to deter him and future presidential candidates from trying to do so again,” argued Norman Eisen, a former Obama administration official. “It would do terrible harm to let a former president walk loose after committing acts for which anyone else would be accused.”

These debates are not a conclusive argument against impeaching Trump. But they add up to a list of reasons why Garland should avoid rash judgment while his investigators do their job – and by all appearances, that’s exactly what he’s doing. Prosecute Trump? Merrick Garland is prosecuting cautiously

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