Monday, July 25, 2022

Will and can the DOJ prosecute Donald Trump for crimes? Maybe

(Formerly embedded in the July 21 posting and moved to this separate post, revised and updated. )

The most immediate question is if Trump and his allies are criminally prosecuted for what they did to overturn the results of the 2020 election and to give Trump a second term.  Maybe. There are some challenges.  It is not cut and dried. The purpose such criminal prosecution serves is not only to punish but to prevent Trump and others from trying it again.  It also will serve as educating voters about how close they came to losing democracy and also to be on alert it could still happen.

As the January 6 committee rested its case at least until fall, the spotlight is now on the Department of Justice led by  Attorney General Merrick Garland to decide whether to charge Trump with a crime via a grand jury. Not every shady practice is a crime on the books.  Dereliction of duty, the accusatory phrase used most in the January 6 hearings, is viewed as a crime in the military, but not in federal laws.   For any criminal charge, prosecutors must prove beyond a reasonable doubt the intent to commit a crime or directly commit ta chargeable crime on the books beyond a reasonable doubt.  That Garland does not exempt a former president from prosecution was confirmed recently in remarks he made.  No person, including Trump,  is above the law.   The reasons put forth by some not to prosecute Trump is the fear that this sets a dangerous precedence that would impact future administrations. However, Trump's case was unique in our history. No president had ever attempted a coup to overturn an election. That is a specific case with specific facts and charges that threatened the very foundation of the rule of law and American democracy.   To let Trump off the hook would set even more dangerous precedence, giving green lights to him and other wannabes for attempting the same in the future, free of painful repercussions.

The Justice Department has a challenge in proving beyond a reasonable doubt Trump intentionally committed a crime.    Intent and a heavy burden of proof are elements needed to charge and convict anyone of a crime that is on the statute books.   Trump has a  long history of thumbing his nose at rules and laws. For him, the rule of law and abiding by laws are barriers to be ignored or gotten around. In his business life before becoming president, penalties, restitution, and lawyer fees were just the cost of doing business and they never deterred him from doing a similar dirty deed again.  Two impeachments didn't stop him nor did the Stormy daniels saga or the findings of civil fraud in the Trump University scheme.  None of this was a secret and sometimes his legal escapades made the headlines. . Declaring numerous bankruptcies was a  business strategy to avoid paying obligations.  Bullying and threats were his weapons.    To avoid loss in civil suits and possible criminal charges,  he learned to leave no fingerprints or evidence of potential culpability, shred documents that would be paper trails of shady practices, and forbad tape recordings like the one that ended Nixon's presidency and did not use email. Using lies to make his point was a good strategy, not a moral wrong.  The most current example, after being told by his family, his attorney general, and rulings by 60 judges, that the election was not stolen, he continued the big lie to fuel the events of January 6.

Trump couched his threats in parsed conversations. Direct evidence that Trump gave the orders for others to commit a crime would give the DOJ's case wings, but the next best can be testimony by witnesses that he intended to do so, his state of mind. and the circumstances around the event. The witness testimony under oath revealed by the January 6 committee was a very significant contribution to the evidence of Trump's state of mind.  His method of avoiding accountability for his actions was honed over the years. First came his ask and then hinting at a threat came somewhere else in the paragraph. Sometimes he just appealed for the loyalty to him he demanded. in return for continued support.  Classic examples were "find me those missing votes ", "get me more dirt on Hunter Biden", and "simply declare the electoral college votes a fraud, I'll take care of the rest". The following threat phrases were not spoken but implied: "I'll primary you", "ruin your political future", "not give you your anti-tank missiles " and  "do it even if you have to break the law or announce a faux investigation. "  That was the message his targets heard; they got it.  As his fixer/personal attorney  Michael Cohen who was jailed for hiding Trump'sexpenses in silencing Stormy Daniels, often related,  Trump gave no direct orders to his fixers and allies and lieutenants, but hinted at his wishes, expected them to do the dirty work,  and take the fall in silence if they got caught.    Direct evidence that Trump actually gave the orders for others to commit a crime would give the DOJ's case wings, but the next best evidence can be testimony by witnesses that he intended to do so, his state of mind. The witness testimony under oath revealed by the January 6 committee was likely the most significant contribution to the evidence of Trump's state of mind.

  Listening to the attorneys and legal experts commenting on TV over the past weeks and post-July 21 hearing, there are at least some possible charges. The next challenge is for the DOJ to present the evidence and case to a grand indict or charge Trump with probably causing a criminal act. The next DOJ decision is whether to go to trial by jury. Merrick Garland has recently indicated that no person, even the president, is above the law, so the indication is that he could charge the president if he so chose.  Most prosecutors usually proceed to a jury trial only if they believe they have a probable conviction, making them more cautious to act than the public would expect.

 1, The clearest thought on an appropriate charge so far I heard was presented by William Cohen this past week.on cable TV.  Cohen is a  Republican who served as both a member of the United States House of Representatives and Senate and as Secretary of Defense under Democratic President Bill Clinton.   He suggested the charge of an accessory to and after the commission of a crime.  Even if Trump did not directly execute the crime himself it is a crime to be an accessory, aiding, and abetting the execution of a crime. 

2. Conspiracy to commit sedition, is a charge already levied on the Proud Boys and Oath keepers. Treason itself cannot be charged unless we are at war. Seditious conspiracy is the peacetime version.  Overturning an election that is part of a  legitimate democratic process is likely a seditious act.  This is a very heavy lift to accuse a past president of something like treason. particularly undermined as a deterrent if no penalties result such as jail time.

3. To interfere with an official government function, is a crime.  The certification of the electoral count is an official government (and Constitutional) function.  This is an obvious one, but the consequences are not very severe.

4. Indict him as a co-conspirator, either unnamed or named. . Trump was the unnamed person number 1 in the Stormy Daniels, Michael Cohen escapade.  Unnamed would be a slap with a wet noodle leaving the question of personal accountability charge as applied to him debated forever.. Its value would mostly be to educate the public about how unfit he was and is to be a president and to influence public opinion about him.  The only penalty levied would be making it more likely Trump will lose an attempt at a second term.

There are other charges out there, but these are the ones I heard most frequently.

Even then, how many of these charges are voters willing to tolerate or believe in his guilt in numbers enough to stop him at the ballot box even if he wins or is found guilty at trial. That is the ultimate question.


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