Will Attorney General Garland Prosecute Donald Trump?

Will Attorney General Garland Prosecute Donald Trump? closeup of attorney general merrick garland with glasses

Attorney General Merrick Garland (Jim Watson/AFP via Getty Images)

By Allan H. Ryskind | Wednesday, 27 July 2022 02:33 PM EDT

Will Attorney General Merrick Garland prosecute Donald Trump for his actions on Jan. 6? That surely is the outcome fervently desired by House Speaker Nancy Pelosi, D-Calif., and Rep. Liz Cheney, R-Wyo., who in effect run the House Select Committee on the Capitol riots.

But the odds favoring such a dramatic result — despite all the sensational testimony and disinformation disgorged by the hearings —would still be long in Las Vegas gambling circles.

The most important star witness for the Select Committee in recent weeks was former White House staffer Cassidy Hutchinson, who testified as if she had personally seen Donald Trump seize the wheel of the Secret Service car he was riding in after he had been told he couldn't accompany the crowd that was going to the Capitol.

But her attorney, Jody Hunt, conceded that Hutchinson only repeated what she had been told by a third party — meaning it was only hearsay, which couldn't be used against the former president in a jury trial. This was a big blow to the Pelosi/Cheney Star Chamber panel.

Then we learned that star witness Hutchinson, long after she maintained that Trump had engaged in wildly deplorable conduct, told influential friends how she loved the former president and how deeply she regretted that the Trump team in Florida rejected her for a job.

All this suggests how irresponsible, desperate and vengeful Pelosi and Cheney have been in running the Select Committee.

This was hardly the only time they deployed below-the-belt tactics designed to put the 45th president in a jumpsuit. Cheney attempted to make Trump a target for the prosecution by trying to prove that he was guilty of "seditious conspiracy" by directly communicating with the Oath Keepers and Proud Boys, who have a reputation for advocating violence against groups on the left.

Trump, the Oath Keepers and the Proud Boys, she maintained, were all conspiring to forcibly overthrow the U.S. government. The Wall Street Journal, a harsh critic of Trump's stolen election meme, said the "seditious conspiracy" charge was in no way persuasive and that Cheney "offered no evidence" (repeat — "no evidence") that Trump communicated directly with either group.

But other than made-up tales by the Pelosi/Cheney lynch team, there's a far more important reason why the Justice Department may never attempt to indict the former president. Prestigious legal experts, even those who may loathe his conduct, think what Trump did on Jan. 6 was not illegal.

The Washington Post, one of his most ferocious critics, completed a stunning investigative report back in January quoting distinguished prosecutors, defense lawyers, law professors and judges on whether our country's former chief executive could be criminally charged for any of his actions on January 6, 2021 — or even on days leading up to that event.

The verdict: The Justice Department would find it difficult to get an indictment and even more difficult to get a conviction. The ferociously anti-Trump paper has not backed off its initial conclusion.

The Post reported that the legal experts to whom they talked believe that much of what Trump's critics have accused him of has traditionally been protected by the First Amendment. He's not the first politician to "call on his supporters to fight," a word that is commonly used in political campaigns and not a call to forcibly break into a nation's Capitol and physically threaten lawmakers.

And while Trump told the crowd to march to the Capitol, "there is no evidence," the Post stressed, "that he knew they planned to storm the building." (It's worth repeating: "no evidence.")

Nor do the current hearings contradict this finding. In fact, the hearings demonstrate what has never been concealed: that Trump has a hot temper and uses threats and bullying tactics, even against his own vice president. This may not be a flattering personal trait but has not yet been viewed as criminal by our country's legal community.

The Post raised major doubts that Trump would even be prosecuted for demanding that Georgia's secretary of state, Brad Raffensperger, come up with enough votes to overcome Biden's lead.

"I just want to find 11,780 votes, which is one more than we have," Trump told Raffensberger. He might have been vulnerable to federal criminal prosecution if he had said just that. But he added this mitigating comment which his enemies normally omit: "Because we won the state."

Why are these five words important? Credible legal experts quoted by the Post said that if the president genuinely believed the election was stolen it would be hard to charge him with a crime for contesting the outcome. (Atlanta's area district attorney has a grand jury looking into whether Trump and his allies violated state law with his call to Raffensperger and their setting up an alternate slate of electors to those pledged to Joe Biden.)

Greg Jacob, former counsel to Vice President Mike Pence, portrayed John Eastman as key to Trump's frame of mind and why the president thought he had the power to overturn the election. Pence had become convinced by the historical record that the vice president had absolutely no authority to block Biden from occupying the Oval Office.

But Trump said Pence definitely had that authority and condemned him for not using it. The main source for his view was Eastman; Trump lavishly praised him during the Jan. 6 rally.

Jacob also said Eastman even barged into a meeting of VP advisers on Jan. 5 "trying to persuade us that there was some validity to his theory." Jacob and the others weren't buying.

"The key to pretty much all these crimes he's been accused of," former federal prosecutor Randall Ellison told the Post, "would be proving corrupt intent." But there would be no corrupt intent, he strongly implied, if Trump could prove that his legal team agreed the election was stolen and that Pence had the authority to make Trump the winner.

Jacob disclosed that Eastman was the legal expert upon whom Trump relied. Nor was he the only one to nail Eastman as the man who helped persuade the president to pressure Pence into overturning the election. The Select Committee shared video testimony from top White House adviser and lawyer Eric Herschmann, who also said Eastman kept pushing for a way to overturn Biden's victory.

Eastman is no ambulance chaser. He was a former professor and dean at the Chapman University School of Law, with even The New York Times remarking that he had "strong conservative legal credentials." So it's hardly surprising that Trump had come to believe two things because of Eastman: that the election was stolen and that Pence had the authority to deny Biden the presidency. (Rudy Giuliani and Sidney Powell also helped shape the president's thinking.)

Other legal experts discovered by the Times, another powerful anti-Trump publication, hold similar exculpatory views on Trump's actions. Daniel L. Zelenko, a defense lawyer and former federal prosecutor, sided with Ellison. "The key," he told the Times, "is having contemporaneous evidence that Trump knew the election was not stolen but tried to stay in power anyway."

Samuel W. Buell, a Duke University law professor, made the same pitch. "You need to show," he also told the Times, "that he knew what he was doing was wrongful and had no legal basis."

No such evidence has materialized. Trump's purpose at the Mall was not to start a riot but to educate those going to the Capitol building why he believed he had defeated Biden. The marchers were then expected to relay that view to the Republican lawmakers they were going to see, hoping to convince them to tell Pence he should call the election for Trump. Trump's view may have been dead wrong but peacefully advocating it, as he clearly did, turns out not to be a criminal act.

Indeed, there was plenty of testimony from the Select Committee to show that Trump genuinely believed he had beaten Biden. Trump's attorney general, William Barr, said as much even though he told the president he was wrong. (In his new book, Barr also says Trump cited material Rudy Giuliani had given him which reinforced his belief he had won.)

The Select Committee,which is likely to release its final report closer to the midterm elections, is expected to be a full-scale assault against Trump and the entire Republican Party. The GOP will have to forcefully challenge it. Some think Rep. Jim Jordan, the Ohio Republican kicked off the panel by Pelosi and Cheney, should take the lead role in exposing its raw partisanship.

His report should list the numerous times he asked those going to the Capitol to demonstrate peacefully. And it should spell out in detail how distinguished jurists believe he acted legally if not necessarily wisely. (Last week, Trump was faulted for not acting quickly enough to shut down the violence. Really? The Capitol was breached at 2:13 p.m. Just 25 minutes later Trump told those in the building to listen to law enforcement and go home peacefully.)

Still January 6, 2021, was the worst day in the president's first term. The rioters were some of his most devoted followers who had been stoked by the president's still-unproven claims that voting machines had been rigged to give Biden the victory. And no matter how much he may proclaim that he won the election, his vice president was not empowered by the Constitution or Congress to unilaterally prevent Biden from becoming the 46th president.

Trump's handling of the situation has become a running sore for his party, since no Republican lawmaker can publicly disagree with his endless haranguing on the topic without Trump unleashing his most dedicated loyalists against that person.

Trump's behavior is often deplorable. But the chances of Garland indicting him have to be considered unlikely, since he's well aware that respected legal authorities don't think the case against Trump will stand up in court.

Ruth Marcus, the liberal columnist on legal matters for the Post, has this take. "Prosecutors," after all," she writes, "must be confident of their ability to prove their case beyond a reasonable doubt." By nature, she adds, Garland is thoughtful and methodical and "would proceed only if the evidence was too overwhelming to ignore." At this point, it's underwhelming.

No matter how eager the Select Committee is for Garland to take Trump on, there are too many reasons why he's likely to avoid that challenge, including this one: He doesn't seem like a man who wants to be remembered for putting the country through the enormous turmoil it would suffer if the Democrats' attorney general decided to launch a volcanic indictment against a popular — if polarizing —Republican former president.

That's true especially when even much of the liberal legal establishment thinks such an act would be unconstitutional. Those Las Vegas odds makers would probably bet he would also lose his case.

Allan H. Ryskind is a columnist and editor. He is the author of "Hollywood Traitors" (Regnery, 2015), a book on how the Communist Party attempted to seize the movie industry.

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