It has become conventional wisdom that Donald Trump will not be prosecuted for his failed attempt last year to overturn the US presidential election.
Such fatalism could turn out to be wrong. Some of it is based on the public’s apparent lack of interest in the congressional committee that is investigating last year’s January 6 attack on Capitol Hill.
This is in sharp contrast to the addictive primetime viewing for the 1970s Watergate hearings into Richard Nixon, which led to his resignation. That could change when the January 6 committee makes its hearings public in the coming weeks. Potential witnesses include Mike Pence, the former vice-president, who refused to bow to Trump’s pressure to overturn certification of Joe Biden’s victory.
Some of the fatalism also stems from the public’s ignorance about what Merrick Garland, the US attorney-general, is or is not doing. Garland is caught between two bedrock legal principles. The first is the Department of Justice’s independence from political interference. The second is that no person, even a former president, should be above the law. It ought to be no surprise that a lawyer of Garland’s background would be proceeding with extreme diligence. He will surely be mindful not to prejudice his work by giving public briefings.
But frustration is nevertheless mounting.
Rarely has a potential defendant revealed his mind as transparently as Trump. The standard of evidence required to prove “criminal intent” in a case of obstruction or sedition is very high. Trump has done a lot of the work for his would-be prosecutors. Every week or so the January 6 committee leaks another transcript of Trump, or one of his lieutenants, appearing to conspire to overturn the 2020 election with a remarkably wide circle of lawyers, White House staff, Republican officials and others.
The seven-hour gap in White House phone logs — leading the committee to probe whether Trump used other people’s mobile devices or disposable “burner phones” during that period — also looks incriminating. During that day Trump told the “Stop the steal” rally that he won the election by a landslide and they should “fight like hell” to win it back. “You don’t concede when there’s theft involved,” he said. The violent storming of the Capitol took place shortly afterwards.
Concern about the passage of time is heightened by the fact that Democrats are likely to lose control of Congress in November.
All but two Republicans — Liz Cheney and Adam Kinzinger — are boycotting the committee.
The Congressional January 6th Select Committee will almost certainly be disbanded if Republicans regain control.
There is also frustration at the DoJ’s slowness in enforcing subpoenas. The committee referred Mark Meadows, Trump’s former chief of staff, for contempt four months ago and the DoJ has not yet acted. Of the several Trump henchmen who are refusing to co-operate only Steve Bannon, his former chief strategist, has a court hearing.
The stakes could hardly be more stark. As America gets closer to the 2024 election, and Trump makes it clear that he wants to run again, the cost of failing to punish the ringleaders of last year’s attack could become painfully apparent.
The risk is that it could be tried again, next time with more success. Justice should be fair and seen to be fair. But it must also be enforced. Garland is in an acute dilemma. There is no precedent for prosecuting a former president. If Garland tried and failed to convict, it would be a disaster.
