The Dance of the Committee and the AG

Today on TAP: The January 6th hearings should move us closer to a prosecution of Trump.

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The most important thing to appreciate about the January 6th Committee hearings is the tandem act with Attorney General Merrick Garland. The hearings will succeed to the extent that they stiffen the attorney general’s spine to indict Trump.

Seemingly, there is already enough evidence on the record to charge Trump with a criminal conspiracy to overthrow a lawfully elected government. Specifically, Trump violated the provision of the U.S. criminal code that makes it a crime punishable by up to 20 years in prison for anyone who “corruptly obstructs, influences, or impedes an official proceeding, or attempts to do so.” The January 6th Joint Session of Congress presided over by Vice President Pence was such a proceeding, and Trump tried to obstruct it in multiple ways.

Trump pressured Georgia officials to find over 11,000 nonexistent votes. Trump conspired with John Eastman, in a multipart plot to have states send Congress competing slates of electors. He tried and failed to appoint a new attorney general, Jeffrey Clark, to send an official Justice Department request to key states to discredit the election results, based on claims the Justice Department had already rejected. Most importantly, Trump repeatedly pressured Pence, publicly and privately, to go along with this plot. And of course, he egged on the Capitol’s invaders.

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According to Justice Department veterans, a few concerns explain Garland’s temporizing; and the hearings should move Garland closer to a decision to prosecute. One nuance is that to obtain a conviction, it’s necessary not just to prove corrupt behavior. You also have to prove corrupt intent.

Trump’s lawyers might argue that he really believed he had won the election, so there was no corrupt intent. To defeat that argument and reassure Garland, the committee yesterday played one clip after another of Trump’s closest advisers telling Trump that his beliefs had no basis in fact. This should help prove corrupt intent. (Delusion is not a serviceable defense.)

A second concern of Justice Department officials is that a prosecution of Trump might be seen as political. Here again, the committee’s work, especially the magnificent opening statements by Chair Bennie Thompson and ranking Republican Liz Cheney, made clear that this is not about politics—it’s about Trump trying to overthrow the Constitution and defying the peaceful transition of power in a democracy. This should move the needle of public opinion—and also strengthen Garland’s resolve.

Recent prosecutions of smaller fry suggest that the Justice Department is moving the way you’d move in a prosecution of a Mafia don (not a bad analogy to Don Trump)—flip the lesser players, and gradually obtain their cooperation for your indictment of the kingpin.

Garland has moved with agonizing slowness, but he doesn’t seem to be stalling for the sake of stalling. After these hearings, it will be harder for the Justice Department not to prosecute Trump.

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