This article is part of the Debatable newsletter. You can sign up here to receive it on Wednesdays.
Last week, the chair of the bipartisan House panel investigating the Jan. 6 Capitol attack, Bennie Thompson, opened the committee’s televised hearings by assigning moral responsibility to former President Donald Trump for “a sprawling, multi-step conspiracy” to overturn the presidential election. But did he commit a crime? Liz Cheney, the committee’s vice chair, seemed to say so, calling Trump’s efforts to obstruct the electoral vote count on Jan. 6 not just “unconstitutional” but also “illegal.”
Congress, though, is not a court, and it cannot find Trump guilty of breaking the law. Which is why the hearings are being interpreted by some lawyers — and presented by some high-profile Congress members — as a road map for the Department of Justice to prosecute the former president at a later date. What would a criminal case against Trump look like, and could it actually succeed? Here’s what people are saying.
The case against Trump
In a March court filing in a civil case in California, the Jan. 6 committee specified two federal crimes for which they believe Trump should be tried: obstructing an official proceeding and engaging in a conspiracy to defraud the United States. (Monday’s hearings suggested that the committee may also believe that the Trump campaign defrauded its donors, but Trump’s personal liability there could be more difficult to prove.)
Later in March, a federal judge ruled that Trump had “likely” committed both crimes. But as The Times’s Charlie Savage explains, that ruling concerned only a dispute over whether the House committee had the right to subpoena the emails of John Eastman, who crafted legal arguments in support of Trump’s efforts to overturn the election, and so required a lower standard of proof. To secure an actual conviction, prosecutors would have to persuade all 12 members of a jury “beyond a reasonable doubt” that Trump had intentionally committed a crime.
In the obstruction statute, the notion of criminal intent turns on whether the defendant acted “corruptly.” For a president to replace an attorney general, as Trump did, is not inherently corrupt. “But if that is done as part of a scheme to misuse the Justice Department to attack an election by pushing unsubstantiated charges of fraud, something that is otherwise a kind of an innocuous act can become part of a criminal conspiracy,” said Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington.
What exactly “corruptly” means, though, is not specified by federal law, as Savage points out. It’s possible, Laurie L. Levenson, a criminal law professor at Loyola Law School, told him, that prosecutors would need to prove only that Trump had at least some reason to believe that his efforts to stop the count might be illegal. But it’s also conceivable that they would have to prove that Trump knew with certainty that those efforts were illegal.
Some legal experts believe that prosecutors could meet even that higher burden. In a new report for Brookings, Bookbinder, Norman Eisen, Donald Ayer, Joshua Perry and E. Danya Perry note that Trump was repeatedly told by trusted advisers, experts and courts that his claims of election fraud were unfounded, and that he attempted to coerce Georgia state officials to “find” just enough votes for him to win — a request plainly inconsistent with the desire to legally contest the falsely alleged fraud.
“The known facts show that Trump tried to retain the presidency even though he knew he had lost a fair and secure election,” the report reads. “These facts, especially when viewed in context, illuminate the critical issue of intent and suggest that Trump acted ‘corruptly’ and ‘dishonestly’ within the meaning of the law, and not with a genuine desire to vindicate the popular will.”
How prosecuting Trump could fail
In his testimony on Monday, Bill Barr, the former attorney general, offered a glimpse at the obstacles that might stand in the way of proving Trump’s guilt. Barr said that he told the president repeatedly that his claims of fraud were unfounded, and suggested to the committee that Trump was growing increasingly “detached from reality.”
From the committee’s point of view, that testimony helps prove Trump’s criminal intent, because it suggests that he knew his claims of election fraud were false. But there is, arguably, another interpretation: that Trump actually came to believe the lie that the election was stolen from him, as he continues to insist.
“Many people spoke to me about the Election results, both pro and con, but I never wavered one bit — follow the facts and proof,” he wrote last week on Truth Social, a social media platform he created. “The 2020 Presidential Election was Rigged and Stolen.”
Trump’s legal team could conceivably make this argument in court, according to Reid Schar, a former federal prosecutor who led the corruption case against Rod Blagojevich, the former governor of Illinois. But it would be a risky strategy, he said, because defenses that turn on the defendant’s state of mind often require the defendant to testify.
“If Trump has to testify, sure, he could get up there and say, ‘I absolutely, genuinely believed in all of this, and however you want to define “corruptly,” I didn’t intend to do anything wrong,’” Schar told me. But then he’d have to open himself up to cross-examination by prosecutors who could probe him about every instance in which a member of his inner circle told him the truth.
“And then it becomes a credibility issue,” Schar added. “Do the jurors, after a cross-examination, credibly believe Trump thought the election had been stolen? Or do they believe that he was just full of it on the stand and is not credible in explaining his actions and beliefs?”
What reads as a flimsy defense to some legal experts, though, could still be enough to divide a 12-person jury. “The problem with Trump is defining his state of mind when it is so changeable,” Julie O’Sullivan, a Georgetown University criminal law professor, told The Times. “He believes whatever he wants to think and it doesn’t necessarily have to be grounded in reality. That’s a tough argument to a jury, to say he knew any particular thing.”
Convincing a jury of any defendant’s criminal intent can be challenging, “and it can be particularly difficult to convict a universally-known personality like Trump, who evokes strong feelings of loyalty from his supporters,” Elie Honig of CNN adds.
Legal merits of the case aside, prosecutors may also be wary of breaking the norm against indicting former presidents. “That’s a hill that no federal prosecutor has tried to climb,” said John Q. Barrett, a former associate independent counsel in the Iran-contra investigation. “It’s a massive undertaking as an investigation, as a trial, as a national saga and trauma.”
Proponents of prosecution argue that the norm is worth breaking: If the Justice Department does not hold Trump accountable, it could effectively give future presidents the green light to commit federal crimes with impunity. But much the same message could be sent if the Justice Department tries to prosecute Trump and fails.
Do you have a point of view we missed? Email us at email@example.com. Please note your name, age and location in your response, which may be included in the next newsletter.
“The Jan. 6 Hearings Can Prove Trump’s Big Lie Is Still a Threat” [The New York Times]
“The Future Criminal Case Against Donald Trump” [The New York Times]
“Why the Memory of Jan. 6 Can’t Prevent a Trump Resurgence” [The New York Times]
“The Anticlimax of the Jan. 6 Hearings” [The New York Times]
“Best- and Worst-Case Outcomes of the Jan. 6 Public Hearings” [The New York Times]