On Jan. 6, 2021, Donald Trump sat in the White House watching a riot unfold at the Capitol.
Throughout the preceding two months, Trump had been engaged in an obsessive campaign to marshal allies, legal theories, and media support behind a false narrative of a stolen election.
Earlier on the afternoon of Jan. 6, Trump had urged the rioters to go to the Capitol. “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” he said.
As the afternoon extended, Trump ignored frantic appeals from advisors, family members, and media figures pleading that he intervene and send the mob home. He continued to watch, rewinding and re-watching with apparent approval particular moments that had caught his attention.
Watching a riot on television is not a crime.
But the hours spent passively savoring that particular riot do provide compelling circumstantial evidence of Trump’s state of mind—of his goals and intentions—as he maneuvered throughout the period between Election Day and the riot to hold power.
On the afternoon of Jan. 6, Congress was scheduled to certify the Electoral College vote and finalize Joe Biden’s election. The riot Trump summoned prevented that certification and delayed the execution of Congress’s legal duty in respect to presidential elections.
From Trump’s inaction we can infer—the inference is inescapable—that he meant to see the certification of the electoral vote delayed and, if possible, prevented. After that, something might break his way. He might hold onto power.
Delay would at least keep his hopes alive.
The federal crime of Seditious Conspiracy is set out in 18 United States Code §2384. In relevant part it states that:
If two or more persons . . . conspire . . . by force to prevent, hinder, or delay the execution of any law of the United States . . .they shall each be fined or imprisoned not more than 20 years, or both.
It is not a complicated law.
It is not a complicated case. Donald Trump is guilty of Seditious Conspiracy.
The Quantity/Complexity Smokescreens
“There’s no grand conspiracy that the FBI found, despite arresting hundreds of people, investigating thousands,” said Jonathan Turley, a George Washington University law professor, assessing the state of the investigations of Trump’s Jan. 6 conduct.
But this is obfuscation. Turley certainly knows (at least I certainly hope Turley knows) that the law forbids not only “grand” conspiracies, but also itsy-bitsy ones that involve only two people.
Like most legal commentators you have seen on cable news more than twice, Turley functions principally as a brand—a reliable source of quotes from a predictable point of view. Still, although Turley may not be someone to worry about; Attorney General Merrick Garland is.
Last week, on the eve of the Jan. 6 anniversary, AG Garland delivered an address in the Grand Hall of the Department of Justice.
Garland performed an elaborate fan dance, exquisitely designed to suggest the possibility of criminal prosecution of Trump—DOJ was “Committed to holding all Jan. 6 perpetrators, at any level, accountable under law,” Garland asserted—while finessing the fact that nothing focused on Trump’s personal criminality was taking place, or ever will take place.
Like Turley, Garland emphasized quantity. Hundreds of rioters were being prosecuted. Some had been convicted and sentenced.
But the key to—in my opinion the whole purpose of—Garland’s speech was the construction of the bogus implication that nothing can be done to present a case against Trump to a grand jury until every schmo in a MAGA hat who vandalized the Capitol is tried and convicted.
“We build investigations by laying a foundation,” Garland solemnly explained, “We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.”
In Garland’s rendering, this process took on a sacramental aura.
Even Garland’s bland persona can’t quite conceal the fact that this is misdirection.
Of course, a prosecutor could prosecute hundreds at the bottom of the pyramid first, and only then work toward the top.
And, of course, a prosecutor could decide to prosecute every one of the hundreds of actors who, over the weeks, left fingerprints on the conspiracy to delay the certification.
A prosecutor could insist on wrapping up every detail of the conspiracy by treating it as a multi-level exemplar of complexity before making any move.
But these are matters of choice. They are not requirements.
A prosecutor could also choose to investigate and present to a grand jury of citizens a streamlined case confined to Trump and his inner circle.
A prosecutor could do that in a day. Half of the evidence you need is on video; the other half is available in published texts, memoirs, and interviews.
By doing that, you would be initiating a criminal process that is hostile to the grueling rounds of interlocutory appeals and collateral litigation that have characterized the Congressional investigations and the civil suits attacking Trump’s actions over the years.
(Generally speaking, in criminal cases you get to appeal a final conviction, but not every intermediate evidentiary and procedural decision along the way to it.)
In fact, what Attorney General Garland is doing—doing covertly—is arranging a peremptory pardon for Donald Trump. He does not want to take on that task of presenting the case to grand jurors and to trial jurors.
Beneath The Law?
On Merrick Garland’s first day in office, as he took control of the Department of Justice in the wake of William Barr’s corrosive term, Garland stated that “The only way we can succeed and retain the trust of the American people is to adhere to the norms that have become part of the DNA of every Justice Department employee.”
Those norms aren’t hidden away in the employees’ DNA; they are set out in a manual.
The relevant clauses of the Principles of Federal Prosecution allow some wiggle room, but in general they indicate that if you have “probable cause” you investigate the case, and if you have evidence that is likely sufficient to secure a conviction, you prosecute it.
In dodging the prosecution of Trump, Garland will be varying from (if not actually violating) the stated norms that he once identified as his first concern.
Why would he do that?
The mistake here is not that Garland sees Trump as “above the law” as many advocates for Trump’s prosecution fear.
In fact, I think Garland (and perhaps President Joe Biden, if Garland is acting at Biden’s tacit direction) are making the mistake of calculating that Trump is beneath the law—a shambolic New York real estate guy, too strange, demented, and amoral to dignify with a prosecution; so superbly slimy that law can’t be applied to him.
It is not the first time Democrats have demonstrated an inability to take Trump as seriously as required.
In this view, it isn’t that a Trump prosecution would fail; in fact, the odds are it would succeed. It just won’t justify the time and effort invested, or the strife provoked.
The Pardon v. The Prosecution
Even on those grounds, I think the decision to let Trump slide is a mistaken one.
But whether or not it is the right choice, it is a premature decision, and taken by the wrong official.
In September, 1974, I was in Washington when President Gerald Ford pardoned Richard Nixon. I was no fan of Nixon, who after all, had done his best to get the members of my generation killed in Vietnam.
But I had just finished a year defending indigents in misdemeanor cases, and even I had to admit that Ford’s reasoning—that he wanted to avoid the further division that a trial would bring—was not irrational. An adversarial criminal trial, at least if the defenders are any good, can create confusion.
Ford may have been right. But Ford’s was a presidential decision, explicitly political, not legal.
The special prosecutor would have been wrong to short-circuit the Nixon case as an exercise of prosecutorial discretion.
This situation is different. Nixon was not contesting his guilt. Trump is, and will until the last ditch.
The resolution of the criminal charges against Trump won’t divide the country any more dramatically than the failure to resolve them already has.
The two impeachment trials Trump has survived were deeply political processes, not a substitute for the legal proceeding.
Now, Trump should face the judgment of citizens.
Grand jurors should be called to weigh his actions against the probable cause standard. If the grand jurors indict, a jury of citizens, giving Trump the benefit of the presumption of innocence and the reasonable doubt standard, should decide his case.
For once, his conduct should be weighed by citizens, not politicians, and in a forum where tested proof, not wild allegation and fantasy, is required.
That’s how the rule of law is mobilized and expressed.
In the end, the jury speaks, and finds the facts.
If a pardon follows, that’s another decision—entirely separate and distinct—a prudential one, for which the current President, who grants it, is accountable.
You don’t have to bring every charge you could bring against Trump, or charge every co-conspirator you could charge, to let the jurors speak on one serious federal crime.
Additional Reading: Will Trump Escape Accountability for Jan. 6?
James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He enjoys hearing from readers.