The evidence gathered by the Jan. 6 commission and in some federal cases against those involved in the Capitol bombing poses for Attorney General Merrick Garland one of the most profound questions any Attorney General has ever faced: Should the United States Indict Former President Donald Trump?
The fundamental allegations against Mr Trump are well known. Disregarding the advice of many of his closest associates, including Attorney General William Barr, he falsely claimed that the 2020 presidential election was fraudulent and stolen; he pressured Vice President Mike Pence to refuse to count certified electoral votes for Joe Biden during the Congressional tally on Jan. 6; and he rushed a mob, directed it toward the Capitol, and for a time refused to take steps to stop the ensuing violence.
To indict Mr. Trump for these and other acts, Mr. Garland must make three decisions, each more difficult than the last, and none of them have a clear answer.
First, he must determine whether it is his decision to indict Trump. If Mr. Garland determines that a criminal investigation into Mr. Trump is warranted, Justice Department regulations require him to appoint special counsel if the investigation presents a conflict of interest for the department and if Mr. Garland believes is that such an appointment is in the public interest.
The department may experience a conflict of interest. Mr. Trump is a political opponent of Mr. Garland’s boss, President Biden. Mr. Trump is also Mr. Biden’s most likely political opponent in the 2024 presidential election. Mr. Garland’s statements will affect Mr. Biden’s political fate and his own potential tenure. The semblance of conflict heightened when Mr. Biden reportedly told his inner circle that Mr. Trump was a threat to democracy and should be prosecuted, and complained of Mr. Garland’s dawdling on the matter.
Even if there was a conflict, Mr. Garland could remain in full control of Mr. Trump’s legal fate if he believes that special counsel would not serve the public interest. Some will argue that the public interest in a just prosecution would be best served by appointing a quasi-independent special counsel, perhaps someone who is a member of Mr Trump’s party.
But whoever directs it, a criminal investigation into Mr Trump would take place in a polarized political environment and an overheated media environment. In this context, Mr. Garland could rightly conclude that the public interest requires that the Trump issue be led by the politically responsible person who confirmed the Senate by 70-30 votes in 2021.
If Mr. Garland opens an investigation into Trump and upholds the case — decisions he may have already made — the second issue is whether he has enough evidence to charge Mr. Trump. The fundamental question here is whether, in the words of the Justice Department’s guidelines, Mr. Trump’s acts constitute a federal crime and whether “the admissible evidence is likely to be sufficient to obtain and sustain a conviction.” .”
These will be hard conclusions for Mr. Garland to pull. He should believe that the department could probably convince a unanimous jury that Mr Trump committed crimes beyond a reasonable doubt. Mr. Garland cannot rest this judgment on the January 6 commission’s unilateral factual recitation or legal assertions. Nor can he give much weight to a ruling by a federal judge who concluded in a civil subpoena dispute — a trial that requires a significantly lower standard of proof to prevail than in a criminal trial — that Mr. Trump (who was not represented) was “more likely than not.” committed a crime related to January 6.
Instead, Mr. Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding conducted by an independent judge, where Mr. Trump’s attorneys will challenge the administration’s factual and legal claims. tell his side of events, make many defenses, and appeal any major adverse legal decision to the Supreme Court.
The two most frequently cited crimes that Trump may have committed are the corrupt obstruction of official proceedings (the Jan 6 vote count) and conspiracy to defraud the United States (by working to undo the election results). Many have commented that Mr Trump can plausibly defend these allegations by stating that he had no criminal intent because he truly believed mass voter fraud had taken place.
Mr. Trump would also argue that key elements of his allegedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol violation, and more — were exercising his constitutional prerogatives as chief executive. Mr. Garland should assess how these legally powerful claims inform the applicability of the criminal laws to Mr. Trump’s actions in what would be the first criminal trial against a president. He would also consider the ill effects of a Trump prosecution on more virtuous future presidents.
If Mr. Garland comes to the conclusion that Mr. Trump has committed criminal offenses, he faces the third and most difficult decision: whether the national interest is served by prosecuting Mr. Trump. This is not a question that can only be solved by legal analysis. It is a judgment on the nature and destiny of our democracy.
Failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, contrary to the idea of constitutional government. It would encourage lawlessness in future presidents, any more than Mr Trump would, should he win the next election. By contrast, the rule of law would be justified by a Trump conviction. And it could be bolstered by a full court broadcast of Mr Trump’s possible crimes during his tenure, even if it ultimately fails.
And yet, Mr. Garland cannot be optimistic that a Trump prosecution would promote national reconciliation or increase confidence in the American justice system. Indicting a past and possible future political opponent of the current president would be a catastrophic event from which the nation would not soon recover. It would be seen by many as politicized retaliation. The persecution would take many years; would survive the next election and have a major impact; and would leave the ultimate fate of Mr Trump to the next administration, which could be headed by Mr Trump.
Along the way, the accuser would further fuel our already blazing partisan bitterness; consume the rest of Mr. biden; encourage and possibly strengthen Mr Trump politically; and threaten to unleash head-to-head accusations in presidential administrations. Thus, the prosecution could jeopardize Mr. Garland’s cherished goal of restoring the Justice Department’s “independence and integrity” standards, even if he prosecutes Mr. Trump in service of those standards. And if the prosecution fails, many will conclude that the country and the rule of law have suffered immense pain for nothing.
Mr. Garland’s decisions will be highly controversial and will have repercussions after his life. It’s easy to see, unlike his many critics, why he’s gathering as much information as possible — including what emerged from the Jan. 6 commission and the prosecution of the senior officials involved in the Capitol breach — before he these weighty judgments.
Jack Goldsmith, a Harvard law professor and senior fellow at the Hoover Institution, is co-author of “After Trump: Reconstructing the President.”