Trump may have legal exposure, but the ballot box will determine his fate

In December, Rep. Liz Cheney (R-Wyo.) hinted strongly that the Jan. 6 committee was looking to make a criminal referral to the Justice Department when she used language directly from the U.S. Code to question Trump’s activities. “Did Donald Trump,” she asked, “through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”

What was suggested by Cheney in December became explicit in the committee’s latest legal document. The filing was part of an effort to obtain access to emails and other documents from John Eastman, a lawyer advising Trump who led an effort — as part of an overall plan to overturn the election — to persuade Vice President Mike Pence to disrupt Congress’s counting of the electoral college votes. In the filing, the committee’s lawyers say there is evidence that “establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts.”

In a statement accompanying the release of the filing, Rep. Bennie G. Thompson (D-Miss.), the chairman of the committee, and Cheney, the committee’s vice chair, said, “The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power.”

The filing refers to obstruction or attempted obstruction of an official proceeding — the counting of the electoral votes by Congress — and an effort to defraud the United States, presumably through repeated false claims of widespread irregularities in the vote counts in the states, false claims that eventually led to the attack on the Capitol.

The filing includes numbers of attachments — portions of committee depositions with former Justice Department officials, advisers to Pence and others, along with a long email thread between Eastman and Greg Jacob, a lawyer and aide to Pence, on the day of the attack. Those attachments, which take readers inside Oval Office discussions between Trump and various advisers, leave no doubt that the president was told repeatedly, starting in the days after the election, that there was no valid evidence of widespread fraud, that he had lost the election.

Despite that, Trump persisted in his claims that the election was stolen, in his hectoring of state election officials, his badgering of Pence to do what Pence said he was not constitutionally authorized to do as the presiding officer at the joint session of Congress, and in calling loyalists to Washington for a rally that then saw thousands attack the Capitol in the middle of the electoral vote counting.

The committee has much work left to do, with depositions continuing, public hearings scheduled for later this year and, eventually, a full report of its findings. It has no power to charge Trump with obstruction or fraud. At most it can highlight its findings through public testimony and ultimately make a referral to the Justice Department and hope that officials there will take the next steps and pursue legal proceedings against the former president.

The legal path to holding Trump accountable, however, remains uncertain, which is why it is more likely that Trump’s future will have to be determined in the political arena, by a vote of the people.

At a minimum, last week’s committee filing adds to the pressure on Attorney General Merrick Garland to pursue such charges. A formal referral from the committee later this year would put front and center the question of whether the Justice Department is prepared to do what many Trump opponents have been calling for since the Jan. 6 attack took place.

Garland has been circumspect about the work underway at Justice. On the day before the first anniversary of the attacks, he delivered a speech in which he said, “The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead.”

Garland’s language was legal boilerplate — standard formulation of an ongoing investigation — and yet tantalizing to those who have argued that not holding Trump accountable for what happened on Jan. 6 would be a dereliction of duty.

On Thursday, Deputy Attorney General Lisa Monaco appeared on PBS’s NewsHour. She was asked about the House committee’s statement that they have developed evidence that points to a good-faith basis for charging Trump. She repeated what Garland said two months ago.

“We are going to follow the facts in the law in what is the most wide-ranging and complex investigation into the events of January 6 that the department has ever undertaken, and we are going to do so regardless of where the facts take us, regardless of what level,” she said.

When the NewsHour’s Geoff Bennett asked her about complaints that Garland is not moving quickly enough, given all the available evidence of alleged criminal actions by Trump and those around him at the time, she said, “He [Garland] was quite clear then and quite forceful that we will follow those facts wherever they lead, regardless of at what level and from what direction. And there should be no mistake about that.”

Still, what members of the House Jan. 6 committee, or people eager to see Trump charged with a crime, might see as clear-cut criminal violations may not be enough to persuade Garland to take the risky step of charging the former president.

The ramifications of such a decision are enormous, including crucial questions of whether the evidence is so ironclad that the government could be certain of getting a conviction; and the momentous political considerations of having this administration charge the chief executive of the prior administration with a crime.

Former attorney general William P. Barr told NBC’s Lester Holt in an interview promoting his new book that while he thinks Trump was “responsible in the broad sense” for what happened at the Capitol on Jan. 6, “I haven’t seen anything to say he was legally responsible for it in terms of incitement.” The full interview will air at 9 p.m. Sunday.

Garland is known as a cautious attorney general, and his caution is a cause of consternation among those who think the evidence against the former president in incontrovertible. But Garland is also known as someone who pursues cases with relentless focus, as he did as a Justice Department official after the Oklahoma City bombing in 1995.

Whatever comes from the legal system, the public is likely to have the last word. The first indications of sentiment toward the former president will come in the November midterm elections, when the power of his endorsements will be tested both in Republican primaries and then against a general election audience. Already, there are signs his influence is waning. But the true test will come in 2024, should he choose to run for president again, when an electorate that has one elected him and once rejected him would have one more opportunity to render a judgment on his fitness.

At a moment when the world has united against Russian President Vladimir Putin in reaction to his invasion of Ukraine, there is nervousness abroad about a possible return to power by Trump in 2024. These are concerns of long standing that have taken on heightened prominence in light of the U.S. role in rallying other countries behind severe sanctions on Russia and military assistance to the Ukrainian government, and the reality that this could be a long struggle to keep Russia isolated, regardless of how the fighting in Ukraine turns out.

To date, Trump’s opponents have found no success in using legal avenues to deny him power. He was twice impeached by the House and twice acquitted by the Senate on largely party-line votes. Other investigations, some now ongoing for years, have not yet borne fruit. The Jan. 6 committee’s findings will be seen by nearly half the country as purely political. The Justice Department’s work carries considerable risks.

Above all, this is a political struggle, long underway with Trump as the focal point, a battle ultimately to be decided at the ballot box.