To Indict, Or Not To Indict
Harvard law professor Jack Goldsmith outlines the decisions that Attorney General Merrick Garland has to make in deciding whether or not to prosecute President Trump for crimes he might have committed in the run-up to the January 6, 2021 insurrection on Capitol Hill. The op-ed is in The New York Times on June 22.
First, Garland has to decide if he alone can indict the former President or does he need to appoint a special counsel. The problem is that Garland’s boss may be Trump’s opponent in the 2024 Presidential contest and so Garland is innately conflicted in this matter. He may have to appoint a special prosecutor. If he goes that route, the prosecutor ought to be a Republican to prevent accusations of bias. Or, he may elect to investigate Trump himself under the idea that at least he is politically accountable to Congress.
Second, is there enough evidence to move the case forward? As Goldsmith notes, Garland has to decide if “the admissible evidence will probably be sufficient to obtain and sustain conviction.” In other words, just like Jack McCoy on Law and Order, Garland has to decide if the evidence is overwhelming such that an independent jury of Americans could convict the former President in a trial the likes of which has never occurred before. How do you seat an unbiased jury? Where would you hold the trial? Who will prosecute? Who will defend? Rudy Giuliani?
Goldsmith thinks the two most likely crimes are “corrupt obstruction of an official proceeding” (on January 6) and “conspiracy to defraud the United States (in working to overturn election results)?”
But Trump could argue that what he did was within his purview as Chief Executive and further that he really believed the election results being reported were wrong and he was just trying to make it right without criminal intent.
The third decision facing Garland is the hardest. Is it better or worse for the country to hold an ex-President responsible in a court of law? On one hand, not indicting allows future Presidents to get away with just about anything. Indicting puts the country through a lengthy trial with years of appeals all the way to the Trump-loaded Supreme Court, no doubt.
Let’s face it. Nothing will convince the current Trump supporters that he did anything wrong. They’ll vote for him again and do not care what he might have done to hold onto power.
So, here’s an idea or two.
First, after the midterm elections, President Biden needs to declare that he is not a candidate for re-election. That removes the conflict of interest issue and frees Attorney General Garland to use his best judgment free of the influence of his boss’s next campaign.
Second, all of the material gathered by the House January 6 Committee needs to be turned over to the Justice Department which needs to pursue its own investigation as well.
Third, how about not doing anything and allowing Trump to just go away?
I know, I know, he would never let that happen, but those in the Republican Party who would like to be Presidential candidates in 2024 would just love for Trump to go away.
Unfortunately, anything short of an indictment of the former President will send the wrong message about who is and who is not above the law. Despite the risks. Garland ought to appoint an independent investigator and await his or her investigation results. If that investigation unearths sufficient grounds for a criminal indictment that the Attorney General thinks he can win in court, he should go for it. If that investigation shows that Trump acted as we know he did, but did so without criminal intent, let it go.
Either result is possible and either result might take Trump off the chessboard in 2024. And if that happens, some good may have come out of all of this.