USA TODAY International Edition
Will Trump ever be held accountable?
Courts are no surefire Senate backstop
Ask any die- hard Democrat their most vivid political fantasy and, if they’re honest, they will describe former President Donald Trump behind bars in an orange jumpsuit. That’s not as outlandish as “I’d like a date with Jennifer Aniston” because Trump spent four years exploding the heads of prosecutors, ethicists and decent human beings with an unbroken chain of corruption that would make imprisonment near certain for most ordinary people.
But if 2020’ s lesson in criminal justice was the deadly disparity between the treatment of Black and white Americans, 2021 is going to be all about the disparity between the powerful and everyone else. Nothing will illustrate that better than the events about to unfold around Trump’s role in the Jan. 6 attack on the U. S. Capitol.
Federal laws make it illegal for someone to incite “any rebellion or insurrection against the authority of the United States”; agree with others to use force “to prevent, hinder, or delay the execution of any law of the United States”; impede “any official proceeding” before Congress; or intentionally disrupt “the orderly conduct of Government business” by engaging in “disruptive conduct” near a restricted building.
‘ Provoked’ means incited
Others have effectively detailed how Trump fraudulently attempted to convince his supporters that the presidential election was stolen; how he leveraged congressional surrogates to amplify an illicit scheme to maintain presidential power; and how he doused rhetorical hot sauce on an angry mob that converged on Washington to do whatever was necessary to stop the final electoral vote count that would declare Joe Biden the president- elect.
Trump’s culpability for an insurrection that breached the heart of American democracy was aptly summarized by Senate Republican leader Mitch McConnell, a longtime Trump ally: “The mob was fed lies. They were provoked by the president.”
McConnell’s “provoked” and the federal insurrection statute’s “incited” sound an awful lot like one another.
And to those who think that Trump is in the clear because he did not march with the mob to the Capitol, like he promised, there is a federal law that says someone who “counsels, commands, ( or) induces” others to commit a crime is just as guilty as the people who physically commit the crime.
America’s first crack at holding Trump accountable will start with this week’s Senate trial based on the House impeachment article charging Trump with “incitement of insurrection.”
Will DOJ indict?
But the writing is already on the wall: 45 Republican senators recently voted to hold no impeachment trial at all, based on the unsupported position that a former president cannot be impeached. This all but ensures that Democrats will fail to get the 17 GOP votes needed to convict Trump and disqualify him from future public office.
Once Trump’s Senate fraternity brothers and sorority sisters give him a pass, the real question is whether the Department of Justice will conduct a full investigation into the many Trump activities that appear criminal — from the campaign finance fraud payoff to Stormy Daniels, to the extortion of Ukraine’s president tying American financial aid to manufactured political dirt on Biden, to the Capitol attack that ended in the deaths of five people.
More important, will DOJ indict Trump if the evidence supports it?
Biden and his attorney general are going to want to make a clean break from anything that could be construed as Biden enlisting DOJ to assist in a payback vendetta. Biden must assure the public that his attorney general will erect a barrier between the White House and any investigation of Trump. Then, the attorney general must appoint an independent special prosecutor, preferably a Republican, to handle any Trump investigation.
Jury might not convict
There will likely be ample evidence to indict Trump. He was already named as “Individual 1,” an unindicted co- conspirator in the New York U. S. attorney’s campaign finance prosecution of his former personal attorney, Michael Cohen. And Trump was regularly churning out damning evidence himself, like being caught on a recorded telephone call asking Georgia’s secretary of state to “find 11,780 votes” so he could beat Biden’s 11,779- vote lead. Trump’s criminal culpability in that instance was so blatant, former Attorney General Eric Holder tweeted the text of the federal law it violated.
But the schoolbook ideal of a criminal investigation and the reality are often not the same. It is one thing for DOJ to risk losing an ordinary case that will go unnoticed. It’s quite another to lose a case on the world stage against a former U. S. president. This will color consideration of a Trump indictment and ratchet up the quantum of proof required to bring a criminal case.
The Justice Manual says a prosecution should begin when there is sufficient evidence to “obtain … a conviction.” But in any case against Trump that proceeds to trial, at least one of the 12 jurors may be a Trump supporter capable of blocking a conviction, no matter how strong the evidence. In cases like this, the Justice Manual allows, though does not require, prosecution.
Squandered second chance
This discretion often means prosecutors demand more evidence before prosecuting a politician or celebrity for the same conduct that would bring swift charges against an ordinary citizen. Case in point: About 190 Capitol rioters have been indicted, while Trump is boning up on his golf game in Florida.
We saw this type of “caution” play out with special counsel Robert Mueller, whose report was bursting with evidence of Trump’s obstruction in the Russia investigation. DOJ precedent meant Mueller was never going to indict Trump. Yet he would not even publicly opine on the task he was hired to perform: Determine whether Trump should be indicted when he left office.
Prosecutors considering a Trump indictment will be concerned that if the notoriety of the defendant overshadows the evidence, a widely publicized acquittal could undercut the deterrent value of prosecutions across the country. That’s not to say that there will be no prosecution of Trump. The Justice Department has a history of doing the right thing and taking tough cases.
Whether Trump adds “convicted felon” to his biography is uncertain. What is certain is that Senate Republicans are on course to blow past the impeachment exit ramp — squandering their second opportunity to protect American democracy from the man who brought it to its knees.