Indict Them All

The U.S. government has to treat a lawbreaking coup attempt as criminal, despite the prosecutorial challenges

A rule of law society, one that likes to tell itself “no one is above the law,” prosecutes crime when there’s clear evidence. Failing to do so, especially in high-profile ways, effectively declares the crime permissible, encouraging repeats or worse.

Congress’s January 6 Committee presented clear evidence that former president Donald Trump, his attorneys John Eastman and Rudy Guiliani, former Department of Justice (DOJ) official Jeffrey Clark, and others violated serious criminal statutes. Their multi-pronged scheme to keep Trump in power after he lost reelection involved pressuring state officials to use lies about fraud to overrule voters; DOJ to announce it found support for claims of widespread fraud that it had already investigated and found to be false; and Vice President Mike Pence to claim powers he didn’t have, cite fraud that doesn’t exist, and send Electoral College votes back to the states. The effort continued during and after the Jan. 6 attack on the U.S. Capitol, trying to use the riot as leverage.

Those activities likely constitute conspiracy to defraud the United States, corrupt obstruction of an official proceeding, and possibly other federal crimes. Whether to file charges is up to the Attorney General, but the ultimate question—whether the current executive branch should prosecute lawbreaking by the previous one—is also one for the public.

Prosecuting former White House attorneys, let alone a former president—one who looks poised to run again—presents challenges, no question. But after the pile of evidence shown in televised hearings, many arguments against indictment boil down to politics, not facts and law, often relying on overly confident guesses about unknowable outcomes.

It’s important to appreciate the complications, but it’s also possible to overcomplicate, to overrate one’s ability to predict public reactions, to erroneously seek a savvy, complex strategy over the straightforward, obvious one.

James Comey did that in 2016 when, as FBI Director, he guessed that Hillary Clinton would become president and worried about accusations of bias in her favor. Politicians and pundits who argued against impeaching Trump in late 2019 for trying to extort Ukraine did that too, guessing it would backfire and get him re-elected. In general, instead of acting on guesses, it’s better to do what the law calls for and let the chips fall where they may.

Despite knowing the case would be complicated and the public reactions intense, I keep coming back to this: Trump and associates tried to overthrow American democracy and public evidence shows they likely committed multiple serious felonies. If they do not face criminal prosecution, they and others will be encouraged to attempt similar election-subverting conspiracies—or worse—in the future. Enforce the law.

Why Not Charge?

Many of the arguments against indicting coup plotters, especially the former president, have some merit. But they do not outweigh the basic principles that no one is above the law, and that letting crime slide encourages more. 

Here are the main ones, and why they fall short:

Trump will paint himself as a victim, motivate supporters, raise funds, and dominate the news cycle. The main goal has to be keeping him from power, and the spotlight of a trial would increase his chances in 2024.

He’s probably running and painting himself as a victim regardless. And while it’s safe to say indicting Trump would affect the 2024 election, it’s impossible to really know how.

Predicted electoral impact is never a good driver for legal decisions. And even if it were—on an emergency basis, perhaps—the impact in this case is too uncertain. Indicting has risks, but so does not indicting. Trying to undermine Trump’s electoral chances by putting him above legal accountability is the sort of “savvy” overthinking we should avoid.

Charging Trump would be “seen by many as politicized retribution” and “enflame our already blazing partisan acrimony,” prompting revenge from Republicans if/when they retake at least one house of Congress (likely this November) and the White House (possibly in 2024), setting off a cycle in which every new presidential administration launches criminal investigations of the last one. 

First, what’s the truth? Would these criminal charges be manufactured, based on little more than political opponents’ say-so? Or do they stem from the facts and the law, and serve a nonpartisan national interest? (Evidence points towards the latter.) 

Second, what’s your sense of the political moment? Are these normal times? Should we think of 2024 like 1980 or 2012, when Democrats Jimmy Carter and Barack Obama were up for reelection amidst economic problems? Should we think of today’s GOP like the party that, ten years ago, nominated Mitt Romney?

If not, if Trumpists are already angry, if they already believe they have been so wronged that drastic action is justified, and Republicans are already casting aside crucial democratic norms, even laws, in pursuit of power, then they’re likely to do what they’re threatening to do, no matter what DOJ does.

If the government charges Trump, how much does that increase the chances a Republican House impeaches Joe Biden, or increase the intensity with which they investigate his son Hunter, or raise the odds a re-elected Trump pardons Jan.6  insurrectionists? The marginal probabilities can’t be large. 

“Don’t enforce the law in good faith because people who disdain rule of law may gain power and use it in bad faith” is a terrible standard.

“Don’t enforce the law against a politically popular criminal because a mob might get violent” is even worse. The United States must not give in to threats.

A violent subset of Trump supporters already formed a mob and attacked Congress, just because their candidate lost a free and fair, audited and recounted, all objections duly considered election. The “look at what you made me do” logic of abusive relationships isn’t going to fly. If anyone gets violent because law enforcement properly enforces the law, that’s on them.

America has never indicted a former president

No president conspired to stay in power despite losing reelection before. Or, for that matter, did anything close. Watergate was like the Ukraine scandal that led to Trump’s first impeachment: a president abusing power to gain an advantage while running for reelection. An attempted self-coup that incites a violent attack on Congress is next level.

Prosecution may require proving Trump’s state of mind

True of many criminal prosecutions. And some experts say it’s unnecessary. Even if Trump believed his own lies about fraud, going beyond lawsuits—which he lost, because he was lying—and pursuing illegal means shows criminal intent. But if DOJ disagrees, the Jan. 6 Committee presented a lot of evidence that speaks to Trump’s state of mind, including recordings of the former president, sworn testimony from Bill Barr, Ivanka Trump, and other top Trump officials, and from state officials on the receiving end of Trump’s pressure.

For example, Cassidy Hutchinson, the top aide to Trump’s White House Chief of Staff Mark Meadows, testified that Trump ordered metal detectors (magnetometers, or “mags”) removed when told that some in the Jan. 6 crowd had weapons and the mags were restricting their movements. “I don’t care if they have weapons,” the former president reportedly told the Secret Service, “They aren’t here to hurt me. Take the effing mags away. Let my people in. They can march to the Capitol from here.”

The Congressional hearings show only the case against Trump. In court he’ll get to present his side.

True of basically all prosecutions, especially against powerful criminals. Yes, this rich man with a devoted following will hire fancy lawyers who will be a challenge to oppose. This is why DOJ recruits and promotes skilled prosecutors.

Also worth noting that this complaint is coming primarily from people whose idea of a defense is “you just don’t like him” and “whatabout something different that someone else did?” That works better on social media than in court.

It might be impossible to get an impartial jury

Yes, in that almost everyone will have an opinion of Trump, and many will have heard things pertinent to the case. But jury selection is a challenge in any high profile prosecution. This would be the highest profile ever, but that’s more of an argument for devoting resources and proceeding strategically than for letting serious felonies slide.

Maybe there would be a Trump superfan or QAnon conspiracy theorist who makes it onto the jury and still, despite mountains of evidence and a consensus of other jurors, refuses to find him guilty of anything. Even then it’d be a hung jury, not an acquittal.

Trump would claim exoneration regardless, but maybe it takes up his focus, and his 2024 star dims relative to not-indicted Republican alternatives. I don’t know if that will happen, but that’s my point, no one does. There are too many possible outcomes in too many directions to base a major law enforcement decision on guessing their relative probabilities.

And if a court finds Trump not guilty, so be it. A jury said OJ Simpson was not guilty. That didn’t make the decision to charge him with murder incorrect.

Criminal prosecution must go “beyond a reasonable doubt,” a higher bar than the “preponderance of evidence” standard of civil trials and public opinion. If prosecutors think they’re unlikely to get a conviction, they shouldn’t bring charges.

DOJ knows what makes for successful prosecution, and has private knowledge about this case. The judgment calls are theirs to make. But note how this is the normal standard—prosecutorial discretion—not one based on politics or guesses about public reactions. 

While law must drive the decision, lawyers can still be strategic about it. DOJ began the Capitol attack case by charging lesser crimes like unauthorized entry and destruction of property, built to charges for assaulting police officers, and then, after establishing in court that a lot of lawbreaking took place, prosecuted members of the Oathkeepers and Proud Boys for seditious conspiracy. Similarly, they appear to be investigating John Eastman and Jeffrey Clark. Successfully prosecuting them would establish that the coup attempt, not only the riot, was criminal.

Eastman wrote a memo planning out how Pence should overturn the election, and kept pushing it despite White House lawyer Eric Herschmann, who represented Trump in the first impeachment, pointedly telling him it was illegal. In an email to Pence’s office the night of Jan. 6, Eastman argued that Congress failing to conclude debate in the allotted time shows electoral law isn’t “sacrosanct” and Pence should do “one more relatively minor violation.” That’s right, he tried to use disruptions caused by the riot that threatened Pence’s life to lobby Pence to do something Eastman said, in writing, would violate the law. And then Eastman asked for a presidential pardon.

Meanwhile, Jeffrey Clark drafted a letter to Georgia officials claiming, fraudulently, that the Justice Department had “identified significant concerns,” and asked Trump to make him acting Attorney General so he could send it. That fulfilled the then-president’s request for DOJ to “just say the election was corrupt and leave the rest to me and Republican Congressmen.” Only a threat of mass resignations stopped Trump from appointing Clark. 

If that’s not criminal conspiracy to defraud the United States, what is? And if Eastman, Clark, and others are guilty, then the leader of their conspiracy should be charged as well.

This case will last years, likely beyond this presidential term. Trump could be elected president while under indictment. Or maybe the next president is a Republican successor with similar disdain for rule of law, who orders DOJ to drop all charges.

An important consideration, but more of a reason to start charging coup-plotters now than a reason to ignore their crimes. If a future president corruptly intervenes in criminal cases, that’s on them, not on federal prosecutors who adhere to “no one’s above the law” today.

The Only Path is Through

I’m under no illusion this will be easy. I don’t know how criminal cases will go or what the ultimate public reactions will be—some Americans will be angry, yes, but what, if anything, will they do?—and I’m aware some plausible outcomes are bad. We still have to put “no one’s above the law” to the test. Declining to do so out of fear says that actually, some are.

As risky as charging Trump and other coup plotters may be, it’s riskier to treat their criminal activity as legal. Like all law enforcement, this is partially about the future. Republicans at various levels of government have been removing the people and institutional barriers that thwarted Trump’s coup attempt, apparently preparing to subvert the 2024 presidential election if they do not win. It’s important for the federal government to signal that the United States will enforce its laws against election-related crimes.

If America does not have rule of law, if becoming president grants someone permission to violate the Constitution whenever they feel like it without consequence, even the parts requiring them to peacefully leave office at the end of their term, we should know that.