Just Security's Ryan Goodman asked multiple former Justice Department legal experts about the need to indict Trump given the revelations this week in the January 6th Committee hearings that 1) Trump was told his plan with Pence and alternate electors was illegal by several of his legal staff, that 2) former VP Mike Pence was indeed targeted by Trump for not following through on that plan, and 3) they knew that SCOTUS would still vote against them even if they pulled it off.
The results are pretty unanimous that Trump should face charges, and that Merrick Garland would have a winnable case.
The following questions relate to the potential criminal liability of President Trump.
As a former federal prosecutor or senior Justice Department official, what legal significance do you give to the above testimony and document in terms of determining an individual’s mental state?
In particular, what significance may that information hold for President Trump’s potential criminal liability under Obstruction of an Official Proceeding, 18 U.S.C. §1512(c)(2) (a charge brought against at least 275 January 6 defendants) or Conspiracy to Prevent an Officer from Discharging Any Duties,18 U.S.C. § 372 (one of the charges brought against Oath Keeper defendants), other federal offenses (e.g., 18 U.S.C. § 371)? Note, in a public court hearing of a January 6 defendant, a lead DOJ prosecutor told a federal court that someone could be guilty of obstruction in pressing Mike Pence to adjudge the certification in a particular way “if that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty.” Not necessary, but you may already be aware or want to consider how DC courts have addressed whether inducing another person to violate a legal duty in relation to an official proceeding meets the definition of acting with an unlawful purpose.
What are your views of these potential sources of criminal liability for President Trump’s course of conduct toward Mike Pence in light of the evidence presented by the Committee?
Please feel free to answer any or all of these questions or related issues that you consider relevant and important.
Goodman got several responses including:
Liam Brennan, a former federal prosecutor and head of Connecticut’s Public Corruption Task Force, currently serves as Inspector General in Hartford:
The testimony from the January 6th committee this week was explosive for multiple reasons. First, it made clear that Trump was advised that his actions to stop the certification of President Biden’s election were unlawful. While there has always been circumstantial evidence to this effect, this direct evidence is more persuasive. Second, John Eastman’s involvement in the scheme has always dangled the possibility that Trump could raise an advice of counsel defense to any prosecution, theoretically negating the corrupt mental state needed for conviction. With email evidence showing that Eastman admitting that he advised Trump that Vice President Pence could not unilaterally reject the electoral college results, any possible advice of counsel defense crumbles. Testimony to this effect is powerful enough, but the emails and Gregory Jacob’s memorandum to Mike Pence detailing these conversations provides a contemporaneous recording of the events that are always weighty pieces of evidence for any jury. The Department of Justice has indicted many defendants with much less evidence than this. These revelations put great pressure on the DOJ and raise the question of whether our criminal law system holds any authority over the actions of a president.
Stuart Gerson, former Acting Attorney General of the United States, Assistant Attorney General, and an Assistant United States Attorney:
The signal value of the Select Committee so far at least is its disclosure of evidence that utterly negates any defense that Donald Trump or his closest advisers somehow lacked intent with respect to their actions as to the January 6 insurrection. It is clear that weeks before January 6 the White House staff under Trump’s direction engaged in a pattern of firings, transfers and otherwise diminishing agencies that could have prevented the events of the day. In addition it is clear that Trump and others close to him were advised, and were aware, that their conduct would violate the Electoral Count Act and perhaps other statutes. It is clear also that Trump was advised and knew even through communications from his daughter and the former Attorney General that he had lost the election and that there was no cognizable evidence of fraud. Put all these things together and it is clear that Merrick Garland would have grounds to seek indictments and would be able to deflect any argument that the participants in the seditious conspiracy lacked criminal intent.
Mary McCord, former Acting Assistant Attorney General for National Security at the U.S. Department of Justice, an Assistant U.S. Attorney, and is now Executive Director of the Institute for Constitutional Advocacy and Protection (ICAP) and a Visiting Professor of Law at Georgetown University Law Center:
Section 1512(c)(2) requires that there be a nexus between the wrongful conduct and an official proceeding and that the obstructive conduct be done “corruptly.” The evidence produced at the June 16 hearing of the House Select Committee established both John Eastman’s proposal–for the Vice President to either reject the electoral votes from the states that submitted alternate uncertified slates of electors or to suspend the joint session and send the dueling slates back to the states in the hope that the state legislatures would change the outcome–had a direct nexus to the counting of the Electoral College votes required by the 12th Amendment. And the evidence that Eastman himself knew and told President Trump that his proposal would violate the Electoral Count Act, along with other evidence that the President was aware that there was no authority for the Vice President to overturn the election, establish that his efforts to pressure Vice President Pence to act unlawfully were done with corrupt intent. In other words, he knew he was pressuring the vice president to violate a legal duty. So did Eastman and Rudy Giuliani, who–based on the evidence produced at the hearing–joined in the apparent conspiracy to “obstruct, influence, or impede” the counting of the Electoral College votes.
Chris Mattei, former Chief of the Financial Fraud & Public Corruption Unit, U.S. Attorney’s Office for the District of Connecticut:
It is important to remember that the entire predicate for the pressure campaign against Vice President Pence was the lie that electors from certain states were illegitimate and, therefore, could be rejected. The Committee has already presented direct evidence that the former President knew he lost fair-and-square and that there was no meaningful fraud in the so-called “contested” states. So, putting aside whether the former President actually believed that the Vice President could reject electors, he knew that there was no factual basis for doing so. That knowledge is compelling evidence that the former President acted corruptly when he and others acting at his direction repeatedly urged Vice President Pence to reject electors.
Prosecutors will want to pair that evidence with evidence that the former President also knew that the act of rejecting electors was itself unlawful. Here, the most damning evidence presented by the Committee is Eastman’s email admission that, after all the back and forth, he ultimately told the former President that the Vice President lacked the authority to reject electors. Yet, the former President continued to insist. To present that evidence, prosecutors will likely seek the testimony of others who similarly advised the former President (or Eastman’s testimony pursuant to a cooperation agreement and guilty plea). On this issue, it is not enough to prove that Eastman knew his plan was unlawful, which he clearly did. The key, of course, is to prove that the former President knew that as well.
If they can develop that evidence, DOJ can make a compelling case that the former President conspired with Eastman and others to corruptly obstruct, influence, or impede Congress’ counting of electoral votes, under 18 U.S.C. § 1512(c)(2). Based on the evidence I’ve seen so far, I think this would be a more straightforward case than a prosecution under § 372.
The responses continue down this vein. Nobody here says that Trump shouldn't be charged, and nobody says that Justice can't win such a case against Trump.
I've said all along that the entire point of the committee's public hearings was to lay out the legal case against Trump, and we're seeing just how effective that case is going to be.