McManus: Prosecuting Trump for insurgency would not be easy

The 845-page final report from the House of Representatives committee dated 6/1, which finally arrived late Thursday night, is an epic. Like Moby Dick or War and Peace, it is destined to be admired more than read.

That’s a shame; Don’t be put off by the number of pages. The narrative at the heart of the report — the story of how former President Trump attempted to use extrajudicial means to overthrow the 2020 presidential election — takes up less than half the volume. (The rest are mostly footnotes and legal notices.)

By now, however, most of us are already wondering about the sequel: will Trump be held legally accountable, like more than 900 of his supporters who stormed the Capitol?

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

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

inciting or supporting an insurrection; Conspiracy to Defraud the United States; obstruction of an official procedure; and conspired to make a false statement.

With an 845-page report based on more than 1,000 interviews, there are bound to be some of those charges, right?

Maybe, but former prosecutors warn that these cases may not be as simple as they look.

Insurgency, the House Committee’s boldest accusation, may be the least likely. The committee argued that Trump not only instigated the storming of the Capitol, but also gave “aid and comfort” to the riot by failing to intervene to end it.

“This is the toughest case — the case that I don’t think any prosecutor will ever bring,” said Norman Eisen, who was an adviser to the House Judiciary Committee when it impeached Trump in 2019.

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

He identified three problems:

“It poses legal interpretation risks,” including whether the 1st 6 riot counts as an insurrection.

“It rests largely on an omission,” Trump’s failure to quickly urge his supporters to resign.

“And as far as this is a case of incitement,” he said, “it has First Amendment issues.”

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

This is not only due to professional vanity or risk aversion. Justice Department regulations require prosecutors to consider whether a case is likely to result in a conviction before filing charges.

“As a prosecutor, you look for slam dunks,” Eisen said.

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

To former prosecutors, and presumably current prosecutors as well, the House Committee’s argument to indict Trump on insurgency sounded like a statement before history, not a practical proposition.

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

“It’s big and powerful, with many spokes,” said Rosenzweig, listing three:

“Electors” – Trump’s campaign to create lists of fake voters from states won by Joe Biden. “Pressure on Pence” – Trump’s attempts to get his Vice President to overturn the result. And “influence on the Justice Department”.

“It’s a process that takes at least eight weeks,” he said. “It hits the mark, but it’s hard to prove.”

A simpler and more attractive charge, several prosecutors said, is obstructing an official process for Trump’s attempts to prevent Congress from formally counting the electoral vote.

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

“A good charge, easier to prove than [it’s] just focused on the voter count,” Rosenzweig said.

The simplest of all, prosecutors say, may be a recommended charge that has received relatively little attention so far: conspiracy to make false testimony based on attempting to send fake voters to Congress who would vote for Trump.

“It’s a relatively simple case,” Eisen said. “With the electoral lists you have a powerful weapon. There is ample evidence that Trump and his attorneys conducted this trial for improper reasons.”

“Easy peasy,” said Rosenzweig.

Still, the attorneys said, if you’re looking for the cases most likely to put Trump in the dock, look elsewhere.

The first case brought forward by Justice Department special counsel Jack Smith may have come from the Mar-a-Lago investigation — the investigation into Trump’s unauthorized holding of thousands of government documents, many classified, at his Florida estate.

“Simple and direct,” said Eisen.

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

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

It is therefore becoming increasingly likely that Trump will face criminal proceedings as early as next year.

Just don’t expect them to look like the ambitious indictments the House committee proposed in last week’s report.

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