July 2, 2022

Coup Plotters in High Places: To Prosecute or Not to Prosecute.

by Hal Gershowitz

Comments Below

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.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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31 responses to “Coup Plotters in High Places: To Prosecute or Not to Prosecute.”

  1. Karen Bennett says:

    We’re damned if we do and we’re damned if we don’t. As political as it may seem, I still believe we must go forward. Our system of government will collapse if there is no accountability for those in high office.

    • Robert Andrew says:

      I agree completely. A democratic republic can not exist without accountability. Trump has a long history of side stepping accountability. Allowing him and his enablers to attempt to attempt to overthrow our government has very, very serious consequences!

      Every successful coup, in history, has been preceeded by an unsuccessful coup. Given the chance, republicans will be successful next time.

      There is nothing more important than setting an example for would be authoritarians, NOTHING!

    • Laurel Hansen says:

      Prosecute! At the least hold him accountable and prevent him from running for any public office ever again.

  2. Rick Gordon says:

    I agree with the Ford example. Full on prosecution will lead to years of distraction and hatred among Americans. We have the important business of our future that requires our focus not the bad behavior of the immediate past.

  3. Steve says:

    Mary Trump, Donald Trump’s niece, described him as “The World’s most dangerous man “. Your essay this week describes exactly why we’re facing a Hobson’s Choice”. And the 5+ years since Trump’s election provides the proof. We have elected a cult leader whose only interest is his personal power, his followers be damned. And most of his followers, so anxious to have things their way, don’t even realize it. If you think about what has happened to the Republican Party since he arrived on the scene, recall what happened to the followers of Jimmy Jones when they “Drank the Kool Aide”. The trouble is, in the case of our American Democracy, we are ALL being forced to drink what Donald Trump and the misguided, newly minted Republicans want us to. Surely a recipe for a Civil war, unless we’re all ready to live in an autocracy.

    • Robert Andrew says:

      Well crafted response. You’re exactly right!

      The lies and phony conspiracies are propagated by the same nefarious characters, over and over again. We must find a way to hold them accountable, as well. The Fairness Doctrine seemed to work pretty effectively at combating one one communications. I’m pretty confident that the Founding Fathers did not intend for the First Ammendment to protect liars! I’m also pretty confident that the current, activist supreme court justices, will not disallow malicious lies. I believe there are two presidents which established that blatant lies were protected.

      Over the last fifty years, we have allowed those who wish to destroy our country, to put in place the tools with which to do so! The repeal of the Fairness Doctrine, by Reagan and his FCC appointees; failure to enact campaign finance reform, and ultimately Citizen’s United, which allows the very rich to buy elected officials, may well have hammered the last nail into the coffin of our democratic republic!

      If we are to protect our democracy, now is the time!

  4. Stephen Prover says:

    It will prove to be virtually impossible to convict Trump with his supporters so adamantly determined to rationalize his every misdeed and idealize this very dangerous, highly disturbed yet highly skilled politician… i.e. highly skilled at prevarication and manipulation…. Nevertheless he and the co-conspirators in his administration should at the very least be indicted and almost certainly prosecuted…. There may be unrest and threats of violence but the justice system/American People must not be intimidated… Trump and his supporters are a real and present threat to our system of government.

  5. sheila says:

    @Rick Gordon -Ford paid a heavy price for pardoning Nixon, but aside from that — Nixon was a different bird. While he did believe that the President was above the law, he was ultimately happy just to avoid prison and to retire to his oceanfront estate, never to be heard from again. Not so with Trump. I agree with Kristy Parker and with Karen Bennett. Garland is duty-bound to prosecute Trump and his wingmen for their crimes. Without accountability, our country will be destroyed – rule of law will have no meaning. And it wll especially have no meaning if Trump is elected again. At a minimum, Trump and all his enablers should be barred from ever holding public office.

    • Joyce says:

      Great article presenting both sides. It sure seems unfair his supporters are being prosecuted but the high ranking officials are not. At the same time I believe he e we I’ll never be convicted- his entire life he has successfully avoided taking responsibility. Would be best for all concerned if he would accept a pardon but he never will. As mentioned unlike Nixon who was in a 2nd term, Trump’s political aspersions has just started. When he first got the nomination his supporters were yelling 12 years – not 8 but 12. He has every intention of figuring out a way to continue in power past what is currently constitutionally possible. I fear He’s never going to walk away.

  6. Ray Galante says:

    Prosecute, indeed prosecute this cultish,phony, dangerous ego-maniac. He is a constant danger to our democracy. Where is the responsible strong objective Republican leadership?

  7. B. J. Olson says:

    I absolutely agree that our government will collapse if there is no accountability for those in high office. So….shouldn’t this include an investigation of Hilary Clinton and Joe Biden?

    • stephen prover says:

      Mr Olson,
      Redirection is an old overused Republican tactic… It will not work in this instance/

      • I think that is a honest question not redirection. These people are in high places but are not even investigated. Hilary and her destroying phones and Biden threatening to withhold one billion dollars unless a prosecutor is fired strikes me something worthy of looking into.

    • Mike says:

      BJ

      Your comments are entirely inappropriate for this column. Anyone with a modicum of sense see quite clearly that behind almost every column and most of the comments is an animus towards Donald Trump.
      So Sheila can overlook Hilary’s complicity in Russiagate which was an overt attempt to attack undermine and in essence overthrow the Trump presidency. And forget about what is on Hunter’s laptop and the follow on evidence that shows Joe supported and abetted Hunter’s peddling his influence to places like China , Russia and the Ukraine.

      So expect Hal to continue beating the 1/6 drum while ignoring the disastrous consequences of the Biden presidency. Unless Hal can figure out how to blame Trumpnfor Joe’s failures we will continue to get Hal’s one sided view of this event.

      Oh one other thing. Don’t expect any objectivity from Hal about the disgraceful performance of the 1/6 Commission. This week was something to behold. Their “bombshell” was a 26 year old expressing heresay as facts – meanwhile they ignored the Sscret Service folks who would have explicitly detailed her lies. But that’s ok because it made trump look even more awful.

    • Tom Loper says:

      OMG, another koolade drinker. If the evidence leads follow. if convicted, on the evidence, Trump will fade away in a well appointed cell befitting his former rank. There was as much evidence to say the election was stolen as there was to investigate Clinton and Biden. IMHO.

  8. Charlie Frankel says:

    We must prosecute Trump as well as the more than 100 congress men and women who went along with the plan. Trump should also be tried for obstruction of justice and witness tampering. If we look the other way then we set a tremendous precedent for the next time and there will definitely be a next time if we don’t prosecute. Great column Hal!

  9. sheila says:

    BJ Olson — For whatever you think of Hillary Clinton and Biden, they did not wage war against or attempt to overthrow our government.

  10. B. J. Olson says:

    I do not drink koolaid, Mr. Loper and I am not redirecting attention to other damning evidence, Mr. Prover. I am not wearing blinders like either of you.
    I believe ALL bad actors should face the consequences of their deceitful and illicit actions.
    This nation is sick of dirty politics, a belligerent and ineffective Congress and the lack of respectful debate.
    Hilary, Biden and Trump should all sent to the same insane asylum.

    • I tend to agree with you that almost all politicians across the spectrum are not working for the country’s best interests. However when they cross the line to actually disrupt free elections, they need consequences. I personally do not wish to live in a dictatorship or theocracy. At this time both are possible.

  11. Steve says:

    It’s interesting that all the “crimes” that I hear Hilary and Biden committed were apparently never actually investigated (while Republicans were in control) and they thus were conveniently “slimed” for political gain rather than actual Justice. How convenient to keep a story alive for many years. Just like an election that 60 courts plus the (Republican controlled) Supreme Court settled a year and a half ago saying that the election of Biden was fair and square. Trump and his acolytes are truly amazing at “cult”ivating their followers.

  12. ecg says:

    The big question is, do we want Socialism that will morph into Communism The Biden administration of the last year appears to be showing us the way. As much as the prior presidency under Trump gave us a more stable USA as far as being free from an invasion of illegal immigrants bringing in crime and dangerous drugs, reasonably priced gas at the pumps, printing of more dollars to give away thus bringing on a major inflation, the nonsense of teaching us the new use of pronouns, teaching our young children inappropriate subjects rather than the ABC’s, parents supervising their children’s education are labelled terrorist’s, etc. So as much as many of you hate Trump, I agree is personality is difficult to handle for many people. But I see us losing our freedom of speech, our Constitution, Bill of Rights,Supreme Court etc. with the Dems.

  13. ECG Do you not see the loss of liberty that is happening. Not from the democrats, but from Republican conservatives. I am a Christian but I do not want to live in a country ruled by just one religion.

  14. BLB says:

    I agree with BJ, Mike, ecg…..
    It appears that those that support the current administration cannot see the forest for the trees….but their hatred and animus for Trump is paramount. I am a conservative, but I do not support Trump for re-election….and I think there are many of us that feel that way. However, everyone seems to lump all conservatives into Trump supporters! Please stop….there are many conservatives that stand true to our values, but do not support the Jan 6 debacle. It was a horrible event, but perhaps deserves a bipartisan committee!
    However, those that support the Biden admin need to take their blinders off and look at where our nation is today. Biden is incompetent, as is his cabinet and administration, including Nancy Pelosi. And Hillary’s past goes way back to her commodity trading days and the days of Vince Foster. Talk about someone “sliming under the radar” for so many years!!

    Roe v Wade has been an issue for many years, if not decades. If Obama and the Democrats had been so concerned about the decision being overturned, they could have taken steps to make it into law when they had super control of the Senate and House for 8 years. Some of us have been living with that decision for 50 years, without destroying property and threatening Justice’s lives. It was changed through the proper channels of our democracy.
    And by the way, a woman’s choice should begin when she decides to engage in a sexual act, not after. Perhaps more contraception education is in order.

    Democracy is definitely in jeopardy as this current administration is continuing down the socialistic path of controlling our government. What we saw last week was a return to a more democratic process of checks and balances on the three tiers of our government.
    And We do hope the Calvary is coming in November!!

  15. Susan Duman says:

    You have been such a good teacher to your readers that I find myself taking in all the information.
    It is so easy to argue it both ways. BUT, it would be a terrible mistake to repeat what Ford did, so I suppose we should go through the hideous experience of attempting to prosecute.
    Our descendants should read in the books that we knew right from wrong.

  16. malley.jim@gmail.com says:

    Thank you for the interesting read the situation surely poses a very difficult and challenging situation. I view Trump as a conman and a grifter having grown up in NYC in the same years he was “growing up”. It is so discouraging to see just how disfunctional our federal government has become and I believe the power brokers like McConnell not only schemed and fueled that disfunction but revel in it so the American majority vote never gets to dictate policy and programs. I considered myself an independent for the vast majority of my 50+ years of voting and I also consider myself a fiscal conservative. BUT honestly I cannot imagine ever voting for a Republican again and in my lifetime the vast majority of fiscally effective Presidents at shrinking deficits have been Democrats.

    I sincerely have no idea what a person means when they say they are a conservative anymore and sadly it seems like it now means wanting to take our country back to social policies on how it was in the 1780’s 🙁 In my recent memory whenever the Republicans had full control they did not help the nation with better healthcare, they did not put through a needs infrastructure bill but oh yes they were great at contributing to 5 trillion dollars in defense spending and tax cuts that vastly helped their wealthy donors. How sad.

  17. Jeff says:

    You have made some ridiculous assumptions, If the Jan 6, Committee was balanced and presented both sides I would agree but it is not and does not. It is a show to divide the country make us that feel we were wrong by saying this is a stolen election. There is very little coverage in the other side of this case. Most of the protesters that were in the building walked by officers that DID NOT ask them to leave. Some of the most obvious instigators were videoed and identified and not prosecuted and this will not be public knowledge and not considered in this sham of a trial.

  18. Kristin McInnes says:

    AG Garland said that nobody is above the law. If Trump’s seditious, treasonous plans had succeeded, we would be living under authoritarian rule and that cannot be allowed to happen. If he’s not prosecuted, the Congressional MAGAs will be further emboldened to carry out Trump’s evil agenda. Democracy will be dead and the country will never be the same.

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