Should former (or current) government office holders, regardless of position, be prosecuted if there is evidence that they were participants in a plot to interrupt the constitutionally mandated counting of certified electoral ballots on January 6th, 2021?
On that day, we all watched the most widely viewed coup attempt in the history of the world. Its purpose was to illegally obstruct the constitutionally mandated counting of electoral ballots, a seditious act unparalleled in the history of the United States. The only open questions are whether that attempt to obstruct the counting of electoral ballots was planned, and if so, by whom, whether anyone in high office knew of or participated in those plans, and whether or not government officials, if any, who knew of or participated in those plans should be prosecuted.
So far, at least 865 people have been arrested and prosecuted for various offenses ranging from illegally parading or demonstrating in the Capitol to illegally trespassing into the Capitol to stop, or interfere with, an official government proceeding. One group of defendants affiliated with the far-right Oath Keepers has been charged with seditious conspiracy, which is the most serious offense leveled, thus far, at any of the January 6th defendants.
About 185 of those arrested have been tried and sentenced to various terms of punishment ranging from imprisonment to community service. Trials of those detained are ongoing. Thus far, no federal government officials have been charged with any crime related to the attack on the Capitol. Deliberately interfering with or obstructing an official United States government proceeding is a serious federal crime.
So, let’s assume for discussion that what happened at the Capitol on January 6th, 2021 was an illegal attempt to stop the counting of electoral ballots. Let’s further assume that what was attempted on that day was planned. There was a coordinated effort (a plot) to stop the count, masquerading as an operation to stop the steal. Let’s then further assume that those who attacked the Capitol had been convinced that the wrong person was about to be declared President-Elect of the United States.
Assume, further; there was a plot to falsely convince the nation that the 2020 election had been rigged, that the loser, Joe Biden, was about to be illegally declared the winner, and that attacking the Capitol to keep that from happening would, therefore, be legal. That plot, if conceived or supported by anyone in high office, would, by definition, constitute a high crime.
Assuming there is compelling evidence that such a plot did exist and that one or more high-ranking government officials were among the plotters, knew of the plot, or approved the plot, the question then arises—to prosecute or not to prosecute those high-ranking government officials. Are we, or are we not, committed to equal justice under the law?
Is there too great a danger in prosecuting a political figure, such as former President Donald Trump, who has achieved iconic stature, misguided as many might consider that stature to be? Should the divisive potential of such a prosecution preclude prosecution? Or, put another way, would the national interest be served by prosecuting a high-ranking government official who enjoys the respect and admiration of millions of our fellow citizens? These questions constitute a historic dilemma—a dilemma we are apt to face, perhaps, sooner rather than later.
The justification for convening a grand jury to consider whether or not there is enough evidence to indict the former President was probably provided by federal district court judge David O. Carter, who has served on the federal bench for nearly 25 years. This former marine and decorated veteran of the Vietnam War determined that Trump had “more likely than not” committed federal crimes by his participation in efforts to interfere with the certification of electoral votes a year-and-a-half ago.
That a compelling case could be prosecuted may be clear. Whether such a case should be prosecuted is, to many, far less clear. Assuming a grand jury indicted him, charging the former President would be a dicey proposition. It would, of course, require proving to twelve jurors, beyond a reasonable doubt, Trump’s criminal intent. Each juror would have to ultimately agree that he was guilty of planning, inciting, or otherwise participating in the January 6th coup attempt. The risk could be high that a jury would acquit the former President, and the risk would be even higher that such a trial could end up with a hung jury, which would only require one dissenting juror. The likelihood of a jury reaching a unanimous verdict would not be the proverbial slam dunk. Prosecutors would have to believe the evidence of guilt compelled a prosecution.
If the evidence of serious criminal activity, in this case plotting or participating in an attempted coup, is compelling, then not prosecuting or otherwise establishing the guilt of any high official, including the former President, would set a terrible precedent. No one in America is, nor can anyone in America be perceived to be, above the law. Not prosecuting isn’t the same as pardoning because a pardon is used to set aside punishment for a crime that has been adjudicated or otherwise acknowledged.
There can be close judgment calls on whether or not to prosecute a former President for a wide array of alleged offenses. There is no end to the persuasive arguments that can be made for either prosecuting the former President or not charging the former President. However, if the offense is instigating or participating in a coup, that is, a plot to interfere with or abort the peaceful transfer of power as mandated by the Constitution of the United States, there are no mitigating circumstances. There is simply no higher crime against our country.
Nonetheless, former President Trump has twice avoided conviction in the US Senate following two impeachments by the US House of Representatives. An acquittal or a hung jury in a criminal trial could easily wind up burnishing rather than tarnishing former President Trump’s political stature, at least within the Republican Party. So, a decision to prosecute is an enormous decision. A decision to either prosecute or not prosecute will be exceedingly divisive given the current political climate in the United States.
Former federal prosecutor Chuck Rosenberg, who once served as the United States Attorney in both the Eastern District of Virginia and the Southern District of Texas and, at one time, served as the Chief of Staff to the FBI Director and as a counselor to the Attorney General of the United States, believes the example set by President Gerald Ford, in pardoning Richard Nixon, would be the model to follow should prosecuting Donald Trump appear warranted. Rosenberg argues that it was wise to pardon (rather than prosecute) Nixon. It was, he argues, best for the country in 1974 to move past a disgraced president and turn toward the future. Why? First, Rosenberg believes prosecuting Trump would keep him in the public eye—and in the public debate—for years to come. Second, a federal prosecution would distract our President, our Congress, and our nation from important work. Third, charging Trump could appear vindictive to his many supporters. Fourth, Rosenberg argues that we cannot allow transitions of power to be accompanied by expectations—or worse, realities—that opponents of those in power go to jail. Rosenberg notes that Ford took comfort in that a pardon imputes guilt, and accepting a pardon (which Nixon did) is “a confession of guilt.”
That said, former federal prosecutor, Kristy Parker, who in 2009 was named Top Prosecutor of the Year by the Women in Federal Law Enforcement, believes the case against former President Trump is formidable. Writing in Just Security, an online forum based at the Reiss Center on Law and Security at New York University School of Law, Parker opines, “given the Justice Department’s Principles of Federal Prosecution, Attorney General Garland should have little choice but to conclude that the implications for democracy and the rule of law of not prosecuting Trump far outweigh the risks of a trial loss, which exist in every complex case.”
While that may be true, every complex case doesn’t involve a widely popular former President of the United States who leads one of the nation’s two main political parties. Parker, however, believes a prosecution of Trump is necessary despite the known risks. The law, she believes, is exquisitely clear. It is a crime punishable by up to 20 years in prison for anyone who “corruptly obstructs, influences, or impedes an official proceeding, or attempts to do so.”
Retired conservative Judge I. Michael Luttig agrees, testifying before the January 6th Committee, ”…Donald Trump and his allies and supporters are a clear and present danger to American democracy…Trump’s plan would have “plunged America” into “a revolution within a constitutional crisis.”
If the Justice Department finds compelling grounds for prosecuting former high-ranking public officials, including former President Donald Trump, deciding to prosecute or not prosecute will be torturous. The world will be watching. History will be waiting.