Senate Democrats believe there is a good chance the Department of Justice will prosecute former President Trump for trying to overturn the results of the 2020 election and inciting the Jan. 6, 2021, attack on the Capitol, which would have major political reverberations ahead of the 2024 presidential election.
Democratic lawmakers say they don’t have any inside information on what might happen and describe Attorney General Merrick Garland as someone who would make sure to run any investigation strictly “by the book.”
But they also say the fact that Garland has provided little indication about whether the Department of Justice has its prosecutorial sights set on Trump doesn’t necessarily mean the former president isn’t likely to be charged.
Given the weight of public evidence, Democratic lawmakers think Trump committed federal crimes.
But Senate Democrats also warn that Garland needs to proceed cautiously. Any prosecution that fails to convict Trump risks becoming a disaster and could vindicate Trump, just as the inconclusive report by former special counsel Robert Mueller’s team was seized upon by Trump and his allies to declare his exoneration on a separate series of allegations.
Sen. Richard Blumenthal (D-Conn.) said “clearly what [Trump] did” in the days leading up and the day of the Jan. 6 attack on Congress “falls in the ambit of what’s being investigated and perhaps is criminal.”
Sen. Tim Kaine (D-Va.) said it’s up to the prosecutors at the Justice Department whether to charge Trump, though he believes that the former president’s actions on and before Jan. 6 likely violate federal law.
“They have all of the evidence at their disposal,” he said.
Kaine believes federal prosecutors are looking seriously at charges against Trump, although he doesn’t have any inside information about what they may be working on.
“My intuition is that they are” looking carefully at whether Trump broke the law, he said. “My sense is they’re looking [at] everything in a diligent way and they haven’t made a decision.”
“I believe there are federal statutes that are very much implicated” by Trump’s efforts to overturn President Biden’s victory in the 2020 election, Kaine added.
Sen. Sherrod Brown (D-Ohio) said, “I think anybody who it’s proven had a role in the planning of [the Jan. 6 attack] should be prosecuted, not just the people who broke in and smashed the window in my office and others.”
“I think anybody that’s shown to have had a role in its planning absolutely should be prosecuted,” he added. “I mean it was treason, it was trying to overturn an election through violent means.”
Asked whether Trump broke the law, Brown said “I’m not going to say he’s guilty before I see evidence,” but he also said there’s “a lot of evidence that he was complicit.”
Trump is facing threats at the state level.
In Georgia, Fulton County District Attorney Fani Willis (D) told The Associated Press this past weekend that she is leaning toward asking a special grand jury to authorize subpoenas to advance her investigation of Trump’s conversation with Georgia Secretary of State Brad Raffensperger (R).
She said a decision whether to bring criminal charges against Trump would likely be made in the next six months.
Trump is also under criminal investigation by the Manhattan district attorney’s office and New York Attorney Letitia James (D) for possible bank and insurance fraud.
Democratic lawmakers on Capitol Hill have their eyes on the legal fights but are more keenly interested in whether the federal Department of Justice, which has considerably more resources, will also bring its legal firepower to bear on the former president.
Garland gave Democrats a tantalizing hint when he announced the day before the first anniversary of the Jan. 6 attack that he would prosecute those responsible “at any level” for what he called “the assault on our democracy.”
“The Justice Department remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible,” he said.
It was a potentially significant statement from an attorney general who otherwise keeps his cards close to the vest.
“Garland is a sort of by-the-book guy,” said Kaine. “You have prosecutors who will talk about things, kind of give you status reports along the way. But that’s not really the most professional things for prosecutors to do.”
“What prosecutors usually do is they analyze all the evidence and then they either file an indictment or charge or they say nothing,” he said. “If they file an indictment or charge, they let that speak for itself and they don’t editorialize about it.”
A Democratic senator who requested anonymity to comment on what Democratic lawmakers expect from Garland said many believe Trump broke the law by trying to halt the certification of Biden’s victory.
But the lawmaker warned that it could be tough to win a conviction in court and that Trump will try to discredit any prosecution as a politically motivated witch hunt.
“It’s going to be a hard decision for them to make,” the senator said, referring to Garland and his team.
A second Democratic senator who requested anonymity to comment on the possibility of a federal prosecution of Trump warned that it would take only one pro-Trump juror to derail a conviction and that failure to win any case in court would have disastrous consequences.
“If you pull the trigger on this one, you have to make sure that you don’t miss, because this is one if you miss it essentially validates the conduct,” the senator warned.
Legal experts are split over how strong a case Garland would have against Trump.
Randall Eliason, a law professor at George Washington University and a former federal prosecutor, last year said that it would be appropriate for prosecutors to investigate Trump’s role in the Jan. 6 attack and his efforts to halt Biden’s certification as president.
But Andrew Koppelman, a constitutional law expert at Northwestern University, told Bloomberg that Trump’s right to free speech would make any case against him difficult to prosecute.
“You can’t allow the government to lock up protest leaders whenever the protests produce violence,” he warned. “The Trump speech was full of lies, but that’s not a crime. He told them to ‘fight like hell,’ but that’s familiar political language that does not ordinarily produce violence.”
Updated at 8:43 a.m.