Dept of Justice and One State are Closing in on Donald Trump
There are now three clear indicators that criminal probes of Donald Trump are rapidly reaching a conclusion. First, in Georgia, a special grand jury investigating his efforts to overturn the presidential election in the state has concluded its work. The Fulton County district attorney, Fani Willis, has indicated that charging decisions are imminent. Key parts of the grand jury report will be released this Thursday.
Second, the Manhattan district attorney’s office is reportedly presenting evidence to a grand jury regarding the accusation that Trump paid hush money to the porn actress Stormy Daniels before the 2016 election.
Third, as The Times reported last week, the special counsel Jack Smith issued a subpoena to Mike Pence. The special counsel said it is investigating Trump’s mishandling of classified information and “efforts to interfere” with the certification of the 2020 presidential election on Jan. 6, 2021, and with the “lawful transfer of power” after the election. Pence is a direct witness to key events surrounding at least two of those subjects: Jan. 6 and the election interference efforts before Jan. 6.
Pence is reportedly planning to challenge the subpoena on separation of powers grounds, claiming that his former role as president of the Senate was legislative and therefore entitles him to at least some protection from the Department of Justice’s subpoena. But even if he mounts that challenge, issuing a subpoena to a former vice president is a significant step and not one likely to be taken for general information-gathering purposes. Instead, as the former federal prosecutor Andrew McCarthy wrote in National Review, the subpoena indicated that a final charging decision was “probably nearing” and the prosecutor was “preparing to cross the Rubicon.”
If prosecution decisions are imminent, what principles should guide the prosecutors? What factors should they consider when deciding whether to charge a former president? When weighing the facts and the law, they should remember the rule of law and apply the rule of lenity. They should not, however, consider politics or the potential of mob violence.
In short, the guiding prosecuting principle should rest in the old maxim “Let justice be done, though the heavens fall.”
The rule of law is easy to explain. America’s republican form of government does not create or permit a special class of citizens who are immune from legal accountability. (The arguable exception is the serving president. It’s the longstanding position of the Department of Justice that indicting a sitting president would “impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” But Trump, of course, is no longer president.) The United States has prosecuted a vice president, governors, members of Congress, and federal judges. The Supreme Court has held that presidents are subject to legal process, even when they occupy the Oval Office.
So yes, former presidents should be subject to prosecution. This position doesn’t endanger our system of government; it protects and applies a fundamental American legal principle: We are all equal in the eyes of the law.
But that principle of equality brings me to the second factor to consider, the rule of lenity. It’s a principle of statutory construction that states “when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant.” Another way of stating the rule is that the government shouldn’t stretch or extend the law to criminalize misconduct.
The rule of lenity is both just and practical. As a matter of justice, should our nation be prosecuting citizens criminally under novel legal theories? The law should give fair notice of its scope, and it should be clear enough to permit us to conform our conduct to the relevant legal standards. Expanding the reach of laws beyond their plain text violates this principle and undermines trust in law enforcement.
Applying the rule of lenity to Trump — as it should be applied to every citizen — means that he should be prosecuted only when the evidence indicates that he has clearly violated laws with plain and clear meaning, either on their face or as further defined by controlling precedent.
Thus I was concerned when I read The Times’s report on the Manhattan grand jury proceedings. It rightly said that although he is accused of making hush money payments, the legal theory that it could support a felony charge “has largely gone untested” and “would therefore make for a risky legal case against any defendant.” If that’s the case, then don’t file the charge.
Georgia criminal law, by contrast, is both clear and quite obviously relevant to Trump’s conduct. For example, Georgia law prohibits “criminal solicitation to commit election fraud” when a person “solicits, requests, commands, importunes or otherwise attempts to cause the other person to engage” in conduct that would be a felony under Georgia election law.
Moreover, Georgia law makes it a felony to conspire to commit election fraud, and the crime is complete “when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the violation of this chapter is consummated.” In other words, the conspiracy does not have to succeed to be criminal.
Why highlight these Georgia statutes? Because Trump was caught on tape telling Georgia’s secretary of state, Brad Raffensperger, that he just wanted to “find 11,780 votes” and Trump clearly threatened Raffensperger with a “big risk” of criminal prosecution for allegedly “not reporting” fictional Georgia election fraud and for “letting it happen.”
In addition, we know that Willis has stated that 16 Republicans who falsely claimed to be Georgia’s valid presidential electors are targets of her criminal investigation. The fake elector's scheme and the threats directed at Raffensperger clearly implicate the plain language of the relevant statutes.
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Are there federal laws that are equally applicable to Trump’s conduct? Pence’s testimony could be particularly relevant to any prosecution under 18 U.S.C. Section 2383, which applies when a person “incites, sets on foot, assists or engages in any rebellion or insurrection against the authority of the United States or the laws thereof or gives aid or comfort to it.”
Trump has always had a strong defense against the claim that he incited the attack on the Capitol. In his speech on Jan. 6, he said, “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” but he also urged the crowd to “peacefully and patriotically make your voices heard.”
Thus, the admonition to fight had to be metaphorical, right? Not so fast. The former Trump aide Cassidy Hutchinson testified under oath that Trump said before the rally, referring to magnetometers in place to scan for weapons: “I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the f-ing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the f-ing mags away.”
If Hutchinson’s testimony is accurate, that means Trump knew members of the crowd were armed, that he did not want to use security devices to screen for weapons, and that he wanted the armed protesters to march on the Capitol. Pence’s testimony could bolster or undermine those contentions.
I can’t analyze every potential criminal claim against Trump. If you’ve got time, I highly recommend reading the Jan. 6 committee’s final report and a comprehensive Brookings Institution report on Fulton County’s Trump investigation. But after I read hundreds of pages of testimony, it’s clear to me that there is no need to stretch the law or apply novel legal theories to hold Trump accountable for his misdeeds.
You’ll note that I’ve spoken exclusively of legal principles in evaluating any decision to prosecute Trump. The reason is simple: The prosecutors’ decision to file charges should be governed by the law and the facts alone and not by any heightened concern for or about Trump or his supporters.
Just as it would be harmful to our republican ideal of equal justice under the law to grant Trump a status-based exemption to state or federal law, it would be deeply problematic to grant Trump a fear-based exemption from prosecution. A refusal to prosecute Trump because of a fear of mob violence or civil unrest would grant Trump the equivalent of a heckler’s veto over the rule of law.
As Ian Bassin and Erica Newland argued in a powerful and persuasive New York Review of Books article last July, It is beyond the “proper powers” of the Department of Justice “to weigh whether indicting would be in the national interest.” Weighing the national interest is the president’s purview, and the path to avoiding prosecution for the sake of national stability is through a presidential pardon, not through an exercise of prosecutorial discretion.
Presidents can pardon federal crimes. They cannot pardon state crimes. But even if President Biden could pardon Trump, he should not. If the evidence clearly indicates that Trump committed a crime, he should face a jury, and if the jury convicts him, he should go to prison. After the Senate failed to convict Trump in his impeachment trial, the criminal justice system is one of the last lines of defense against this malignant man and his malignant mob.
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