Prosecuting Trump for Jan. 6 Is Worth the Political Risk

The question on everyone’s mind is whether Attorney General Merrick Garland will follow up on the incriminating evidence being laid out for him in meticulous detail about the ex-president and the conspiracy he set in motion to overturn the 2020 election.

Most reasonable people agree that what former President Donald Trump did is worse than Watergate. But if it’s worse than Watergate—where a number of government officials were sent to prison—what are the prospects for anyone serving time? And if not, why not?

The attorney general won’t make his decision in a vacuum, and the jockeying over whether the Jan. 6 Committee should make a criminal referral is less about the stunning evidence they have uncovered than it is about the political repercussions of prosecuting a former president—especially one who is likely to run again in 2024.

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Department of Justice prosecutors following the committee’s evidence will make the determination as to whether a case is winnable, and the bar will be high. “The job of the AG is to make a legal determination that there exists sufficient evidence that a jury would return a guilty verdict beyond a reasonable doubt,” Richard Ben-Veniste, who was a special prosecutor during the Watergate scandal, told The Daily Beast.

“To those clamoring for a fast decision by AG Garland, I would urge patience,” he adds. “Federal prosecutors have tools to pursue evidence and compel testimony from reluctant witnesses that are unavailable to congressional investigators.” Garland has repeatedly stated that he will follow the facts wherever they lead. “We should take him at his word,” Ben-Veniste insists.

Garland doesn’t need a criminal referral from Congress to proceed, and the Jan. 6 committee chair Rep. Bennie Thompson has said that isn’t the committee’s role—a statement that brought immediate pushback from vice-chair Rep. Liz Cheney. The controversy stems from differing views over whether a referral from the Jan. 6 committee would be counterproductive, increasing partisan pressure on Garland, yet making it harder for him to press ahead. When asked whether he was watching the hearings, Garland replied “yes” with more eagerness than he generally displays, adding that DOJ’s Jan. 6 prosecutors were also paying close attention.

But a criminal referral from a congressional committee has “no legal weight,” says Elliot Williams, an attorney who has worked both in the Senate and at the DOJ. The argument against such a referral is that it adds “a little bit of a stench of politics,” Williams says, when the focus should be on “the major, probably massive report” the committee will issue with all their evidence. “Congress isn’t telling the Justice Department anything it doesn’t know or should know already,” Williams adds. The two investigations are proceeding in tandem, although the Jan. 6 committee has not yet turned over everything it has.

The DOJ this month charged the leaders of the Proud Boys and the Oath Keepers with seditious conspiracy. A criminal referral would put pressure on Garland in the court of public opinion, but Garland will base any decision to prosecute Trump on the strength of the evidence. The committee may not clear that very high bar, but the DOJ—with its power to compel testimony with a grand jury—could get over the finish line.

There won’t be a puff of white smoke emanating from the DOJ to alert us that they’re investigating potential crimes committed by Trump. But, really, how could they deny the public such an indication? Yet it’s possible that—with such a sensitive case—the lead prosecutor and the AG may not explain the nature of the investigation until it’s time to speak in court.

“It’s very intentional on the part of the committee, laying out breadcrumbs in terms of each allegation, and without directly saying so, calling for federal action,” says Jack Pitney, professor of politics at Claremont-McKenna College. “Cheney inserted the word ‘illegally’ when she said Trump summoned a violent mob and directed them to march on the Capitol. She’s a lawyer, she knows what she’s doing.” Cheney used the word “corruptly” three times in the seven-part plan she said Trump used in his effort to overturn the election and prevent the transition of power.

“What they’re doing is laying out evidence of his state of mind and that he either knew or should have known the fraud charge was bogus,” says Pitney. Former Attorney General Bill Barr’s observation in a video clip that Trump was “detached from reality” might fall under the legal umbrella of willful ignorance given all the testimony from his inner circle of advisers that they told him the election was fairly decided and there was no evidence of fraud that would change the outcome.

Watergate took two-and-a-half years from start to finish, and for much of that time, the public wasn’t paying attention. We’re a year and a half removed from the Jan. 6 attempted insurrection, and with the midterms looming, it would be politically irresponsible for the DOJ to take any major action in the short term. “The current news cycle and news climate rewards news happening on a timeline that is incompatible with how the investigation of a public figure works,” Williams told The Daily Beast.

“A segment of the population is salivating at the prospect of seeing President Trump investigated and indicted. The only thing worse for history than charging a former president of a crime is having those charges dismissed and having that person acquitted. There are huge costs to the country, and the Justice Department prosecutors have to make sure they’re confident they have the evidence. I don’t see that as cowardice, it’s responsible prosecution,” Williams added.

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Fifty years ago this summer, then-President Richard Nixon resigned rather than face impeachment and certain conviction. He left Washington utterly disgraced. There was no possibility he would run again, and he was pardoned by his successor, Gerald Ford, who concluded the nation had wallowed long enough in Watergate.

Whatever Garland does about Trump, his tenure as AG will be defined by his decision.

The times are different from when Ford could pardon Nixon and genuinely believe it was an act of healing. Leaving Trump unaccountable would be a dereliction of duty by this very mild-mannered and fair-minded AG. There are risks in proceeding, but there are equal risks in letting Trump slide free yet again.

“I don’t think Trump would be shy about firing up his supporters again,” says Pitney. Either way, there may be no stopping Trump, but standing aside like the Republicans did during two impeachments should not be an option.

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