McManus: Prosecuting Trump for insurrection would not be easy

The House Committee’s 845-page final report in January. 6, which finally arrived Thursday night, is epic. Like “Moby Dick” or “War and Peace,” it is meant to be admired rather than read.

It’s a shame; don’t be put off by the page count. The narrative at the heart of the report—the story of how former President Trump tried to overturn the 2020 presidential election through extralegal means—takes up less than half the volume. (The rest are mostly footnotes and legal summaries.)

By now, though, most of us are already wondering about the aftermath: Will Trump be held legally responsible, just as more than 900 of his followers who stormed the Capitol have been?

“Ours is not a justice system where foot soldiers go to jail and masterminds and ringleaders get a pass,” the representative said. Jamie Raskin (D-Md.), a member of the committee, said last week.

To push the Justice Department toward indictments, the committee offered four federal charges that could be brought against Trump:

Incite or assist in an insurrection; conspiring to defraud the United States; obstruct an official proceeding; and conspiring to make a false statement.

With an 845-page report based on more than 1,000 interviews, surely some of these charges will be filed, right?

Perhaps, but former prosecutors warn that these cases may not be as easy as they seem.

Insurrection, the House committee’s boldest charge, might be the least likely. The committee argued that Trump not only incited the storming of the Capitol, but also gave “aid and comfort” to the insurgency by not intervening to end it.

“This is the most difficult case, the one I think any prosecutor will ever bring,” said Norman Eisen, who was counsel to the House Judiciary Committee when it indicted Trump in 2019.

“Hard to prove, and rare,” agreed Paul Rosenzweig, a former prosecutor who worked in Republican administrations.

He listed three problems:

“It brings risks of legal interpretation,” including on whether January. 6 mutiny qualifies as an insurrection.

“It’s mostly based on an act of omission,” Trump’s failure to quickly urge his supporters to withdraw.

“And to the extent that it’s an incitement case,” he said, “it has 1st Amendment issues.”

Federal prosecutors prefer cases that are easy to win, which means easy to prove to a jury.

This is not just a matter of professional vanity or risk aversion. Justice Department regulations require prosecutors to consider whether a case is likely to result in a conviction before filing an indictment.

“As a criminal prosecutor, you’re looking for slam dunks,” Eisen said.

“For a jury, simpler is better, always,” Rosenzweig said.

To former prosecutors, and presumably to current prosecutors as well, the House committee’s argument for charging Trump with insurrection sounded like a statement before history, not a practical suggestion.

One of the committee’s other recommended charges, conspiracy to defraud the United States, also poses problems.

“It’s big and chunky, with lots of spokes,” Rosenzweig said, listing three:

“Electors”: Trump’s campaign to produce fake voter slates from states won by Joe Biden. ‘Pressure on Pence’: Trump’s attempts to bully his vice president into overturning the result. And “influence on the Department of Justice.”

“This is an eight-week trial, at least,” he said. “That’s right, but it’s hard to prove.”

An easier and more attractive charge, several prosecutors said, is obstruction of an official proceeding, for Trump’s attempts to prevent the formal recount of congressional electoral votes.

“It’s pretty easy to describe common sense to a jury,” said Donald B. Ayer, a former Justice Department official under President George HW Bush.

“A good charge, easier to prove, com [it’s] focused only on the electoral count,” said Rosenzweig.

Easiest of all, prosecutors said, could be a recommended charge that has so far received relatively little attention: conspiracy to make a false statement, based on an effort to send bogus electors to Congress who will vote for Trump.

“It’s a relatively simple case,” Eisen said. “You have a smoking gun in the form of electoral rolls. There is ample evidence that Trump and his lawyers undertook this process for improper reasons.”

“Easy, easy,” Rosenzweig said.

Still, the lawyers said, if you’re looking for the most likely cases to impeach Trump, look elsewhere.

The first case brought by Justice Department special counsel Jack Smith may stem from the Mar-a-Lago probe: the investigation into Trump’s unauthorized storage of thousands of government documents, many of them classified, in his estate in Florida.

“Simple and straightforward,” Eisen said.

Even before the Mar-a-Lago cases come to a head, Trump could face state charges in Georgia, where a county prosecutor is investigating the former president’s demand that state officials “find” votes enough to overturn Biden’s victory there.

That grand jury is already writing its final report on whether Trump’s actions violated a Georgia law that prohibits the solicitation of voter fraud.

Therefore, it is increasingly likely that Trump will face criminal proceedings as early as next year.

Don’t expect them to look like the ambitious charges the House committee proposed in last week’s report.

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