Prosecute Trump? Merrick Garland is investigating aggressively but prosecuting cautiously

WASHINGTON —  The House committee on the Jan. 6, 2021, insurgency, whose hearings resume this week, has produced impressive evidence that could allow prosecutors to argue that former President Trump committed crimes as he tried to overturn the 2020 election.

Thanks to the hearings, we now know more clearly that Trump tried to bully Vice President Mike Pence into blocking Congress’ count of electoral votes, tried to bully Justice Department officials into declaring the election fraudulent even though they knew it wasn’t and stood by with seeming approval while his armed supporters sacked the Capitol.

All of which has led many ordinary citizens — and not just Trump-haters — to wonder: Why isn’t Atty. Gen. Merrick Garland prosecuting this man?

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The answer is both complicated and simple. Indicting a former president for trying to subvert a presidential election is harder than it looks.

“It’s definitely not a slam-dunk,” Paul Rosenzweig, a former federal prosecutor (and anti-Trump Republican), told me last week. “It will require tough decisions.”

The problem isn’t lack of evidence. The former Trump aides who have testified before the House committee and been interviewed by the FBI have taken care of that.

The problem, Rosenzweig and other former prosecutors said, is that convincing a jury that Trump is guilty beyond a reasonable doubt will still be difficult — especially when the former president, armed with good lawyers, can challenge that evidence.

“We know from the polls that about 30% of the American people think Trump did nothing wrong on Jan. 6,” Rosenzweig said. “Thirty percent of a jury is three or four people. I think getting a unanimous conviction will be nearly impossible, even in the liberal District of Columbia.”

And a trial that ends in Trump’s acquittal, he warned, would backfire.

“It would not only have the effect of giving Trump impunity,” he said, “it would give him impunity and an aura of invincibility.”

Others disagree. Donald B. Ayer, another Republican former prosecutor, thinks a conviction would be possible. “Trump was ready to have Mike Pence be killed,” Ayer said. “You tell that story to a jury, and I think you win.”

But Ayer notes that Justice Department regulations require that prosecutors believe they have a high probability of winning a conviction before they can indict. By that standard, what Garland is doing is both correct and by the book. He’s investigating aggressively — but prosecuting cautiously.

Justice Department lawyers have served subpoenas on Rudolph W. Giuliani and John Eastman, lawyers who advised Trump on his schemes, and on pro-Trump activists who organized bogus slates of “alternative electors” in swing states like Arizona and Georgia.

Last month, FBI agents searched the Virginia home of Jeffrey Clark, a former top Justice Department official who pushed colleagues to endorse Trump’s claims of voter fraud.

And prosecutors have indicted leaders of the right-wing Proud Boys and Oath Keepers militias on charges of seditious conspiracy in connection with Jan. 6.

All of which suggests that the Justice Department is pursuing a traditional organized-crime model in its investigation: prosecuting small fish to build cases against the higher-ups.

Even so, Trump will be able to argue in his defense that he lacked criminal intent, by claiming either that he genuinely believed the election had been stolen or did not know that interfering with Congress could be against the law.

The most likely charges against Trump are conspiracy to defraud the United States, a broad statute that covers almost any illegitimate interference with government operations, and conspiracy to obstruct an official proceeding.

There is also a broader policy question surrounding a decision to indict a former president, an action no prosecutor has taken before: Would it be in the national interest?

“Indicting a past and possible future political adversary of the current president would be a cataclysmic event,” Jack Goldsmith, a former Justice Department official in the George W. Bush administration, warned last month. “It would be seen by many as politicized retribution. The prosecution would take many years to conclude … [and would] deeply affect the next election.”

Others lawyers, both Republicans and Democrats, disagree vigorously.

“It’s essential that Trump be prosecuted, if only to deter him and future presidential candidates from trying to do this again,” Norman Eisen, a former Obama administration official, argued. “It would do terrible damage to allow a former president to walk free after committing acts for which anyone else would be indicted.”

Those debates don’t amount to a conclusive argument against prosecuting Trump. But they do add up to a list of reasons why Garland should avoid a rush to judgment while his investigators do their work — and that, to all appearances, is precisely what he’s doing.