Opinion Trump’s chances of a Jan. 6 indictment soar
Smith has shown there is no institutional aversion within the Justice Department to indicting a former president when the facts and the law require. Before his appointment, Americans had reason to doubt (based on the investigation’s slow pace and apparent focus on low-level actors) whether that was the case with regard to the Jan. 6, 2021, insurrection. Perhaps Attorney General Merrick Garland did not want to subject the Justice Department to more political vitriol, people thought. Maybe he recoiled at the notion that a former president’s successor could jail a political opponent.
Sure, Garland said the right things. On the first anniversary of the Jan. 6 insurrection, he declared, “The Justice Department remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” But saying the right things differs from doing the right thing.
Ironically, it was Trump’s declaration to run for president — a move he thought would insulate him from prosecution — that might have triggered his legal death spiral. Had he not declared, Garland likely would not have appointed a special counsel. And that special counsel proved to be a bulldog, chasing down every lead, pursuing all needed appeals and empaneling multiple grand juries.
Though Smith has apparently not yet made a recommendation on Jan. 6-related charges for the former president, it is now inconceivable that he would decline to recommend indictment or that Garland (who followed his recommendation in the Mar-a-Lago Espionage Act case and released John Durham’s much-derided report in its entirety) would reject his recommendation.
Five factors now point to a federal indictment on Jan. 6-related charges.
First, the Justice Department has already obtained multiple convictions on the most serious charge — seditious conspiracy — and long prison terms for multiple militia group members. Smith might not be able to directly tie Trump to the violence, but it would be a gross injustice for the people Trump told to go to the Capitol to do his bidding to get heavy jail sentences but to let the man they believed sent “orders” to go free.
Moreover, by winning convictions on seditious conspiracy, the department has proved that the events of Jan. 6 were sedition, namely an effort “to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States.”
If Trump cannot be tied directly to the violence (either in calling for his supporters or allowing them to run amok for 187 minutes), his effort nevertheless plainly sought to prevent the execution of the law and the constitutional transfer of power.
Second, a state filing in Georgia based on the phony elector scheme and the effort to cajole Georgia officials to “find” just enough votes to flip the state to Trump more or less force Garland’s hand. The federal counterparts to expected state charges (e.g., interference with an election official, voting fraud) cannot be wished away. If the facts are available for Fulton County District Attorney Fani T. Willis, they are there for the Justice Department.
Third, Smith has the goods. The inner circle has been pierced; credible witnesses with percipient knowledge of the relevant facts are arrayed against Trump. He’s got the evidence the House select committee on Jan. 6 committee obtained. He has the testimonies of former vice president Mike Pence, former chief of staff Mark Meadows and former White House lawyers. His futile attempts to invoke executive privilege and attorney-client privilege have gotten him no relief. As we saw in the Mar-a-Lago case, powerful evidence from Trump’s own mouth, provided by those closest to him, can make for a damning indictment.
Fourth, U.S. District Judge David O. Carter, in a case involving John Eastman’s assertion of attorney-client privilege, already found that (albeit at a lower standard of proof) “President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.” Looking at the accumulated evidence, he found, “These actions more likely than not constitute attempts to obstruct an official proceeding.”
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At trial, Smith would have to prove this conclusion beyond a reasonable doubt, but, for an indictment, a grand jury need find only “probable cause” that the crimes were committed. Smith certainly should be able to persuade a grand jury based on the same evidence (plus additional evidence later compiled) to return an indictment.
Fifth, the conversation about the propriety of indicting a former president has percolated throughout the political system. As evidence of Trump’s liability (on multiple grounds, in different venues) has mounted, we saw the shift from “How can we indict without becoming a banana republic?” to “How can we fail to indict without becoming a banana republic?” Certainly, MAGA Republicans remain devoted to their cult figure, with no regard for the rule of law. But polling during and after the Jan. 6 hearings showed that majorities think he did something illegal and/or should be indicted.
This does not mean Smith should be guided by public polls. It does mean there is no flashing red light to suggest the public would rise up in opposition to an indictment, no threat to the institutional integrity of the Justice Department beyond those already screaming “witch hunt!” or making wild, baseless accusations about misconduct.
Given the convictions of Jan. 6 participants, the Georgia investigation, Smith’s success in getting witness testimony, Carter’s decision and general public sentiment, it would be foolhardy to bet against an indictment on Trump’s most serious breach of his oath: his attempt to overthrow the results of a presidential election. All Americans should look forward to the day when he is held accountable for his attack on democracy.
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