Federal prosecutors have asked for hundreds of witness interviews from the House Jan. 6 committee, adding to the intrigue over whether President Donald Trump could face criminal charges just weeks after a federal judge ruled that Trump “more likely than not” committed fraud connected to the 2020 election.
The decision on whether to bring charges against Trump or any former president won’t be made solely on the strength of the case, former prosecutors and defense attorneys said. Prosecutors must weigh whether the potential for violence and further dividing the country outweigh the need for criminal accountability.
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“The Principles of Federal Prosecution call for attorneys to take into account whether there is a substantial federal interest in bringing charges, and that’s where you would weigh the good and the bad of taking an action,’” said Barbara McQuade, the first woman to serve as U.S. Attorney for the Eastern District of Michigan and now a University of Michigan professor.
“Will it be too divisive for the country? Could it spark a civil war? That’s a real conversation they would have to have. Would not prosecuting embolden people to do it again? And that’s where I think the need to file charges outweighs any potential damage.”
Judge David O. Carter of the Central District of California, an appointee of Bill Clinton, gave a blueprint for possible criminal charges two months ago when ruling that the “crime fraud exception” gives House investigators the right to communications between Trump and one of his lawyers, John Eastman.
Carter’s 44-page ruling read like a potential indictment of Trump and Eastman. He listed three distinct crimes, laid out the elements of each offense and cited reams of evidence they conspired to defraud the country and overturn the presidential election.
Specifically, Carter said it’s “more likely than not” that:
- Eastman and Trump attempted to “obstruct Congress’s proceeding to count the electoral votes on January 6,” in violation of 18 U.S.C. § 1512(c)(2);
- Trump, Eastman and others “entered into an agreement to defraud the United States by interfering with the election certification process,” in violation of 18 U.S.C. § 371;
- Trump and members of his campaign “engaged in common law fraud in connection with their efforts to overturn the 2020 election results.”
The finding carries no legal weight, but former federal prosecutors and criminal defense attorneys said the order provides ample evidence against Trump and Eastman. Carter meticulously undercut a possible Trump defense that his claims of elections fraud were honest opinions, writing that Trump’s own attorney general, White House Counsel and more than 60-federal judge concluded there was no evidence of election fraud.
“If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution,” Carter wrote in ordering Eastman to provide documents sought by the select committee.
The standard of proof Carter cited in settling a civil dispute falls far short of getting a jury to agree “beyond a reasonable doubt,” that the men are guilty of a federal crime, attorneys said. And the leap from a civil finding to a monumental criminal charge should not be taken lightly.
“It would be something of profound, legal, historical, political significance, and profound difficulty,” said Jeffrey Robbins, a partner with Saul Ewing Arnstein & Lehr in Boston and former assistant U.S. attorney. “That doesn’t mean it shouldn’t be done, but prosecutors would have quite a bit to overcome. But at the end of the day, as ... painful as it would be for the country, you can’t allow presidents to violate the law.”
Still, they said federal prosecutors have far more tools than do House investigators while searching for signs of a conspiracy between the rioters and the White House. They can obtain bank records and possibly find text messages and emails that have eluded the House investigators, and convene a grand jury to compel testimony and gather evidence.
“There is no doubt a great deal of other evidence not included in what the House has, or what it presented to the judge,” Robbins said.
Federal prosecutors asked the House January 6 committee for records including the sworn testimony of top White House officials, Trump associates, his children and son-in-law.
McQuade said the evidence already known makes it nearly impossible for Trump to say he was exercising his First Amendment right.
“Yes, that would be a defense, but a person is not allowed to willfully ignore the facts,” McQuade said. “There is a memo from his own campaign that there was no fraud. No one in their right mind would agree when he says he believed there was election fraud.”
Carter made that point when outlining what he called criminal actions by Trump and Eastman.
“President Trump and Dr. Eastman justified the plan with allegations of election fraud — but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful,” Carter wrote.
McQuade created a sample prosecution memo, identical to what federal prosecutors make when trying to support filing or not filing charges in high-profile cases. In the memo and an interview, she acknowledged the potential dangers of indicting Trump.
“If he had been impeached and convicted, they may have decided that would be an adequate alternative remedy,” McQuade said in an interview.
Robbins pointed to other countries that have successfully prosecuted former heads of state including Italy, France and Israel.
Picking an unbiased jury to try Trump would be difficult, and Trump’s lawyers likely would push to have the case moved out federal courts in Washington, where Hillary Clinton and Joe Biden each won more than 90 percent of the vote against him. Additionally, many of the potential jurors likely work for the federal government or live within a few miles of the U.S. Capitol, where the deadly assault took place.
“It would be messy. The question is whether it’s messier to go through the process or more damaging to let the former president who violated the most sacred laws get away with this,” Robbins said.
While Justice Department policy prohibits charging sitting presidents criminally - that decision is left to Congress through impeachment - that doesn’t apply to former presidents. In the wake of Watergate, President Gerald Ford pardoned Richard Nixon to keep him from facing prosecution after he resigned the presidency.
“This is the type of scenario that presents itself all the time in high profile cases, but the challenges are not insurmountable. Far from it,” Robbins said.
It’s unlikely that prosecutors will act before the midterm elections, and the Justice Department has a policy against bringing charges close to an election cycle.
McQuade said there are more practical concerns.
“A case like this is enormous, and if they are doing this they are still in the phase of gathering emails, phone, bank records,” McQuade said. “It takes so long to bring together so much evidence, interview witnesses, convene a grand jury. I don’t see anything happening this year. I think 2023 is the timeline.”