Since Jan. 6, 2021, a national debate has swirled around whether former President Donald Trump will be investigated and prosecuted for any crimes he may have committed through his efforts to remain in office despite his clear election loss. A growing consensus has emerged among legal experts, scholars and those otherwise concerned with the health of our democracy, that Trump’s actions to overturn the election warrant criminal accountability. That sentiment was significantly bolstered when federal district court judge David O. Carter, reviewing an effort by the House Select Committee investigating Jan. 6 to obtain documents from a key witness, found that Trump had “more likely than not” committed federal crimes in trying to interfere with the electoral count proceedings that day. Judge Carter’s pronouncement didn’t break any news about the evidence or the potential crimes Trump committed, all of which have been well–documented. But the impact of a matter-of-fact pronouncement on Trump’s potential culpability from a federal judge was unmistakable. As one analyst wrote in the New York Times, the ruling “intensified scrutiny on the question of whether the Justice Department can, should or will try to charge him with the same crimes.”
Yet Judge Carter’s opinion also met with a wave of warnings from legal journalists and expert commentators that accountability advocates shouldn’t get their hopes up for a Trump prosecution, largely because of the difficult challenge of proving his criminal intent beyond a reasonable doubt to a unanimous jury of twelve, and the too-high risk of an acquittal or hung jury. “The chances that Trump will be convicted of any crime are slim to none,” wrote one former prosecutor, and “a failure to convict will only embolden him and his followers.”
As a former federal civil rights prosecutor who investigated and tried police abuse cases under the onerous “willfulness” standard for many years, I have a more optimistic view of the Justice Department’s (DOJ’s) prospects for successfully prosecuting Trump. The former president’s defense counsel would be wise to advise him accordingly.
When the evidence of Trump’s intentions and actions is viewed through the lens of the cases the Department and the Select Committee are building–including evidence of the ties between the foot soldiers who led the Jan. 6 riots and Trump’s inner circle–and in the context of the cases the Department has already prosecuted against other Jan. 6 defendants, it looks formidable, not weak. And when it is examined in light of the Department’s Principles of Federal Prosecution, Attorney General Garland should have little choice but to conclude that the implications for democracy and the rule of law of not prosecuting Trump far outweigh the risks of a trial loss, which exist in every complex case.
In the discussion that follows, I explain the basis for this conclusion by focusing on a prosecution of Trump for obstructing an official proceeding in violation of 18 U.S.C. § 1512(c)(2), the charge DOJ has brought against more than 280 Jan. 6 defendants. (Note: other charges may be available against Trump, and he could (and likely would) be charged with conspiracy, which requires an agreement to commit a crime, or aiding and abetting, in connection with a substantive obstruction offense. For the sake of simplicity, the following analysis focuses on evidence that proves the substantive offense.). After explaining the elements of the charge, I address skepticism that Trump will be charged or convicted, and then explain why a prosecution of Trump is both winnable and necessary despite the known risks. I also discuss the long-standing DOJ standards that point directly toward prosecution in cases such as this one.
Key legal elements of obstructing an official proceeding
18 U.S.C. § 1512(c)(2) makes it a crime punishable by up to 20 years in prison for anyone who “corruptly … obstructs, influences, or impedes an official proceeding, or attempts to do so.” This discussion will assume that the joint session of Congress to count the electoral votes presided over by Vice President Mike Pence on Jan. 6 was an “official proceeding,” and that section 1512(c)(2) applies broadly to efforts to obstruct such a proceeding. All but one of the judges for the District Court of the District of Columbia to consider the issues have so held. (A discussion of the outlier decision by Judge Carl Nichols and the criticisms of it can be found here.)
To prove that Trump criminally obstructed the electoral count proceeding, prosecutors would need to convince a 12-person jury that he acted “corruptly.” According to the D.C. courts, this means that “the defendant must use unlawful means or act with an unlawful purpose, or both” to obstruct the proceeding. In addition, the “defendant must … act with consciousness of wrongdoing,” which is defined as acting “with an understanding or awareness that what the person is doing is wrong” (emphasis added). In other words, it is not enough to prove that Trump knowingly engaged in an act that was unlawful; he must have subjectively understood that the act was unlawful. It is this part of the intent element that makes section 1512(c)(2) a so-called “specific intent” crime and raises the degree of difficulty in proving it. It is also the primary focus of skepticism over whether Trump could be convicted (despite over 280 cases in which federal prosecutors believe they can convict the defendant).
Why the skeptics are so skeptical
Several commentators who have questioned the likelihood of a Trump prosecution have highlighted the challenge of proving that Trump doesn’t sincerely believe his own prolific lies or those of his sycophants, and lamented the absence of smoking-gun evidence revealing Trump’s inner thoughts when it comes to proving that he knew what he was doing was wrong as he attempted, in various ways, to stop the electoral count proceeding.
For example, in one New York Times piece weighing the prospects for a Trump prosecution, the authors noted that Trump “would have a powerful argument about his mental state” against a claim that he pressured former Vice President Pence to violate his legal duties under the Electoral Count Act – i.e., that Trump “sincerely thought he was asking Mr. Pence to do something lawful” because of the “advice” he received from lawyer John Eastman, who concocted a baseless rationale for Pence to ignore the law. Likewise, in a second piece, the Times quoted a law professor for the proposition that “[t]he problem with Trump is defining his state of mind when it is so changeable. He believes whatever he wants to think and it doesn’t necessarily have to be grounded in reality. That’s a tough argument to a jury, to say he knew a particular thing.” A Washington Post analysis similarly observed that while there’s ample evidence “that Trump was repeatedly warned his rhetoric [about election fraud] was untrue, it may be more difficult to prove that Trump believed those warnings.” And another commentator in the Post noted that “[o]ne of the fundamental questions of the Trump era in politics has been the extent to which he believes the false claims he makes …. If he tried to steal power out of a sincere delusion that it was warranted, is that a sufficient condition for innocence?”
Doubts about proving what Trump “knew” dovetail with doubts about the efficacy of using circumstantial evidence to try to convict him. Commentators have variously opined that “inferences from circumstantial evidence tend to be weaker than direct proof,” that prosecutors are “likely to insist on written evidence that Trump knew his actions were illegal,” and something akin to a confession is necessary to any hope of convicting Trump. All of this is underscored by the inevitably political nature of a case involving Trump, where the presence of one or more Trump supporters – who also believe his lies – in a jury pool could prevent a conviction.
Trump’s potentially criminal conduct and its effect on proving his guilty mindset
At a high level of generality, these assessments of the risks of prosecuting Trump aren’t wrong; no one can guarantee a win at any jury trial, much less in a specific intent case. However, they are divorced from the context in which a case against Trump would likely unfold. Although many commentators have focused on the difficulties of proving Trump’s subjective beliefs about the outcome of the election or the application of the Electoral Count Act, the case the DOJ is building seems unlikely to turn on those beliefs. Furthermore, the jury instructions and legal rulings in the Jan. 6 obstruction cases that have already concluded provide a roadmap for how prosecutors can make a winning argument for Trump’s conviction – even with, if necessary, only circumstantial evidence. Indeed, many of the Justice Department’s most important and politically charged cases have been won with circumstantial evidence.
In order to analyze the elements – and particularly the evidence of criminal intent – of a potential obstruction charge against Trump, we must first zero-in on what the relevant investigations have uncovered so far, and where they appear to be headed as additional evidence continues to emerge. The publicly-available facts are succinctly summarized in Judge Carter’s opinion. In effect, there was a multi-pronged effort led by Trump and others to prevent the certification of President Biden’s clear electoral victory that culminated in the events of Jan. 6.
One of those prongs was a campaign by Trump to persuade various federal and state officials to take actions aimed at undoing Biden’s win and allowing Trump to remain in office. This included the former president’s efforts (beginning before votes were cast) to claim the election was fraudulent; to coerce Georgia Secretary of State Brad Raffensperger to “find 11,780 votes, which is one more than we have” in order to overturn the result in Georgia; to convince DOJ officials to “just say the election was corrupt and leave the rest to me;” and, of course, to harangue Vice President Pence into setting aside his legal duties as President of the Senate under the Electoral Count Act based on Eastman’s scheme – which Eastman himself admitted was so clearly unlawful that it would be rejected by all nine Supreme Court justices. An obstruction charge based on this prong would most likely focus on the pressuring of Pence in his role as a legislative officer, with the other actions serving as evidence of Trump’s overall malign intent. We know that Trump was repeatedly told by the Attorney General and others that his election fraud claims were unfounded, and that he was surely aware of the more than 60 court decisions rejecting all such claims. Key evidence still to be uncovered (or publicly revealed) includes whether Trump was privy to Eastman’s own views of the meritlessness of his claim that Pence could legally refuse to certify the election.
The second prong was the storming of the Capitol by a violent mob aimed at physically disrupting the constitutionally mandated proceeding to formalize the election results. Trump’s relationship to that mob remains a subject of investigation by the Select Committee, litigants in several civil lawsuits (disclosure: I and my organization Protect Democracy are co-counsel in one of those cases), and likely the DOJ, but we already know that Trump weaponized the mob to pressure Pence. We know that members of the mob, including militia leaders who have been charged with coordinating efforts to storm the Capitol, were drawn to Washington, D.C., by Trump’s lies about election fraud and his Dec. 19, 2020, tweet calling for his supporters to assemble for a rally on January 6 that “will be wild.” We know that many of the rioters breached the Capitol intending to stop Pence from counting the electoral votes. We know that militia leaders who planned the breach of the Capitol had close ties to Trump consigliere Roger Stone. We also know that Trump addressed a large crowd at the White House Ellipse that ended just after the electoral count proceeding began at 1 pm, and after Pence informed Trump that he would not go along with his unlawful scheme to reject certain states’ votes. Trump exhorted the crowd to go with him to the Capitol and “fight like hell” to get Pence to “do the right thing.”
Later, twenty minutes after he was told by his Chief of Staff that the mob was inside the Capitol, he poured gasoline on the fire by tweeting: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify.” He then proceeded for a period of several hours to ignore multiple pleas to call off the mob from lawmakers inside the Capitol and his own aides, who evidently believed that the mob was taking instruction from him. At 3:13 p.m. Trump tweeted for the crowd to “stay peaceful,” but pointedly did not call on them to leave the Capitol so the proceedings could resume. Instead, Trump, Rudy Giuliani, and Eastman continued to attempt to persuade lawmakers to delay the counting of the votes. The mob’s efforts succeeded in delaying certification of Biden’s win until 3:42 am on January 7. The continuing investigations will likely focus on what Trump knew about the prospect of militias breaching the Capitol, pressuring Pence, and delaying the certification and what his intentions were when he addressed the crowd at the Ellipse and afterwards in failing to call them off. It is worth noting in this regard that Judge Amit Mehta, who is overseeing DOJ’s cases against Stewart Rhodes and other members of the Oath Keepers, has held that the well-pleaded facts set forth in complaints on behalf of several members of Congress and Capitol Police officers plausibly establish a conspiracy between Trump and those who stormed the Capitol. While the plausibility standard is obviously lower than reasonable doubt, that decision illustrates how a court has already assessed Trump’s use of the mob to orchestrate interference with the electoral count proceeding.
It is possible that the DOJ could elect to charge Trump with obstruction based solely on his own (and Eastman’s) efforts to pressure Pence to ignore his legal duties. A lead DOJ prosecutor verified the viability of that theory during a pretrial hearing for one of the Jan. 6 defendants. And DC courts have held that inducing another person to violate a legal duty in relation to an official proceeding meets the definition of acting with an unlawful purpose. Former United States Attorney Barbara McQuade has explained in detail how a prosecution that does not include Trump’s connection to the mob could be carried out.
However, given what we know of the progression of the investigations, including the guilty pleas and cooperation agreements DOJ has recently obtained from key militia members with links to Trump associates, as well as reports that top leaders of the Oath Keepers are providing DOJ their communications with those “in the former President’s orbit,” it seems far more likely that DOJ would, if it proceeded where the evidence leads, include Trump’s use of the mob to pressure Pence and disrupt the electoral count proceeding as part of the mix. This is so not least because tying Trump to the violence presents a stronger case against him. While at least one of the judges overseeing the Jan. 6 cases has questioned where the outer limits of acting “with an unlawful purpose” lie, she and other judges have been definitive in holding that using independently unlawful means to obstruct an official proceeding violates the statute and have specifically held that violently storming the Capitol to disrupt the electoral count proceeding “falls on the clearly unlawful side of the line.” What’s more, tying Trump to the mob is the mechanism for holding him responsible for the deadly injuries that occurred as a result of the mob’s actions.
A theory of the case that links Trump to mobilizing a violent mob is also an easier lift when it comes to proving Trump’s consciousness of wrongdoing. If DOJ pursues a case based solely on Trump’s efforts to persuade Pence to violate the law, it will likely need to prove that it was not reasonable for Trump to rely on Eastman’s legal advice, either because Trump knew he had not won the election or because Trump knew that the Vice President lacked authority to reject the state’s electoral votes. Although there is ample evidence from which a jury could infer that Trump knew both, this is the place where, as the skeptics have warned, one or two jurors deciding that Trump “sincerely believed” his election lies and the outlandish advice he received from Eastman could derail a guilty verdict.
On the other hand, if DOJ has evidence to prove that Trump knew of the mob’s plans to breach the Capitol or that he incited or aided and abetted them in doing so, Trump’s beliefs about the election and his lawyer’s advice will be largely irrelevant. This is so because using actual or threatened violence to disrupt the proceedings is unlawful regardless of Trump’s nonsensical views on election law, and it is difficult to imagine a reasonable juror concluding otherwise. Indeed, so much so that it would be wrong not to pursue the case on the speculative notion of such an outlier. Trump has denied that the Jan. 6 rally was truly violent or that or that he encouraged violence precisely because he knows that stopping a government proceeding with violence is against the law.
Under the most likely theory of prosecution, DOJ’s chances of prevailing in a case against Trump are strong
Assuming DOJ’s theory of prosecution is that Trump made use of a violent mob to disrupt the electoral count proceeding, the biggest purported weaknesses in the case are the following: (a) the evidence of Trump’s knowledge of the plans to breach the Capitol and his intentions when addressing the mob on Jan. 6 remains, as far as the public knows, circumstantial, and (b) the concern that our polarized country can’t produce a jury that would unanimously agree to convict him even in the face of evidence beyond a reasonable doubt. But there is nothing inherently weak about a circumstantial case, and the evidence against Trump is strong (and likely to get stronger) by comparison to other high-profile cases DOJ has prosecuted. Moreover, the Jan. 6 trials that DOJ has already completed give good reason to believe that a jury in the District of Columbia would make its decisions based on the law and the facts.
As set forth above and in Judge Carter’s opinion, the evidence that Trump waged a campaign (on his own and in agreement with others) to obstruct the Jan. 6 electoral count proceeding is on the cusp of being overwhelming. It would no doubt be useful if the ongoing investigations uncovered even more evidence that Trump helped plan or knew about the plan for the Capitol breach. And they very well might, especially considering the pace at which the ground-up DOJ investigation is producing pleas and cooperation agreements. However, even if they don’t, as Judge Carter said, “The illegality of the plan was obvious.” The evidence proving Trump’s intent is more than enough to sustain a guilty verdict on appeal. And it stands up well to the quantum of evidence in other high-profile cases DOJ has successfully prosecuted with circumstantial evidence.
In the police abuse cases I prosecuted, for example, in order to prove that a defendant police officer knew that their actions were wrongful, my colleagues and I relied on evidence of the defendant’s training, or what other law enforcement witnesses perceived and did during the incident based on their training and asked the jury to infer from that evidence that the police officer defendant knew it was wrong to use the type of force at issue. This is the kind of evidence DOJ recently relied on to convict the four officers who stood by and failed to intervene as Derek Chauvin killed George Floyd, a case that was considered a landmark victory both because of the rarity of convicting police officers for failing to stop a superior from using excessive force and the politically charged context in which it was tried.
Likewise, in a case intimately familiar to Attorney General Garland, DOJ convicted Timothy McVeigh and Terry Nichols for orchestrating and carrying out the Oklahoma City bombing with evidence that was wholly circumstantial and in a political atmosphere in which there were many potential jurors who shared McVeigh’s animus toward the federal government. With the passage of time and McVeigh’s refusal to fight his death sentence, the public has largely forgotten the real-time concern over whether the jury would be hamstrung by one or more pieces of the evidentiary puzzle.
And there are plenty of other reasons to provide cause for optimism that DOJ can successfully prosecute Trump with a circumstantial case.
For starters, jurors who hear a Trump trial will be explicitly instructed that it is acceptable, and indeed customary, for the government to prove its case with circumstantial evidence and will have been vetted in jury selection for their ability to follow that instruction. As the instructions in the trials conducted thus far make plain, there is nothing nefarious or extraordinary about lacking smoking gun evidence of a person’s state of mind: “Someone’s intent or knowledge ordinarily cannot be proved directly, because there is no way of knowing what a person is actually thinking” (emphasis added).
Furthermore, the jurors will be instructed that there is no difference between direct and circumstantial evidence in the eyes of the law: “The law says that both direct and circumstantial evidence are acceptable means of proving a fact. The law does not favor one form of evidence over another. . . . Circumstantial evidence does not require a greater degree of certainty than direct evidence” (emphasis added).
Of course, jury instructions are only as good as the jurors’ willingness and ability to follow them. Here it’s important to recognize the power of voir dire – the questioning of potential jurors by the court and the lawyers for both sides – and the accompanying jury selection process in rooting out jurors who harbor factually false beliefs that they cannot set aside, or who cannot accept and follow the court’s instructions. Such jurors can be removed for cause. The law is clear that Trump is not entitled to a jury that will refuse to follow the law.
In addition, the court has tools that will allow it to prevent a Trump trial from becoming anything close to a fact-free zone. Judges are permitted to exercise control over the presentation of evidence for the purpose of preventing mini trials on issues that are not legitimately in dispute and that could confuse jurors. For example, the court can take judicial notice of “facts not subject to reasonable dispute,” such as the fact that Biden won the 2020 election and that there was no evidence of fraud that would undermine the states’ reported results. If Trump takes the stand in his own defense, he may be allowed to testify that he believed certain things that are objectively false. But his attorneys will not be given free rein to turn the election results into a trial issue.
Could this process nonetheless miss a juror who refuses to follow the law or who is highly sympathetic to Trump and thus inclined to believe him regardless of the evidence presented? No experienced prosecutor would ever say otherwise. But the Jan. 6 jury trials the government has already successfully completed should give Trump no comfort that this will happen.
While those trials involved everyday insurrectionists who stormed the Capitol (or attempted to do so) and not Trump himself, Trump was essentially an elephant in the room at each one. Yet not only were the judges able to seat jurors who followed their instructions, the prosecutors gave clear and compelling presentations that led to remarkably quick guilty verdicts. The Guy Refitt and Dustin Thompson obstruction trials are illustrative of where the momentum lies.
Refitt’s defense attorney asked the jurors – in much the way Trump’s attorneys likely would – to ignore objective reality and find that he didn’t mean the import of his own words and that the video evidence showing him at the Capitol was “fake.” The jury convicted him in less than three hours.
Trump featured more prominently in the Thompson trial, where Thompson claimed that he lacked the necessary criminal intent because he thought he was acting on Trump’s orders when he stormed the Capitol and tried to stop the certification proceeding. As part of Thompson’s defense, the jury viewed a video of Trump’s speech at the Ellipse for the purpose of listening to what Trump said and evaluating the effect of his words on Thompson. Presumably, a juror who was sympathetic to Trump and his claims of innocence would also be reluctant to convict one of his followers who claimed to believe he was acting on Trump’s orders. But the jury convicted Thompson – also after deliberating for under three hours.
There’s no doubt that an actual Trump trial would be unprecedented and to some extent incomparable to anything we have seen in our justice system, and jury selection would be a painstaking process. That said, thus far, DC juries have had no difficulty separating Trump the politician and the web of his big lie from the obvious crimes committed by those who thought they were doing his bidding. And the judges presiding over the hundreds of Jan. 6 obstruction cases have given no hint that they will be unable to prevent a Trump circus from overtaking their courtrooms.
The Justice Department’s standards and the need for accountability favor indictment
All that said, the Justice Department has discretion not to charge a case even if the evidence is sufficient to prove the defendant guilty, and there are those who believe that the risks and consequences of an acquittal of Trump – or even a hung jury – would be so grave that DOJ will not indict a circumstantial case (or any case) against him. But declining a meritorious case based on the political implications of losing would be a hard-to-explain deviation from the Department’s internal standards.
According to the DOJ’s Principles of Federal Prosecution, “the attorney for the government should commence or recommend a federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction,” so long as the prosecution furthers a substantial federal interest and there are no other adequate alternatives to secure justice.
The likelihood of an acquittal for some non-legal reason is not generally a basis for declining a case, especially in the circumstances that apply here:
Where the law and the facts create a sound, prosecutable case, the likelihood of an acquittal due to unpopularity of some aspect of the prosecution or because of the overwhelming popularity of the defendant or his/her cause is not a factor prohibiting prosecution. For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt – viewed objectively by an unbiased factfinder – would be sufficient to sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict. In such a case … the prosecutor may properly conclude that it is necessary and appropriate to commence or recommend prosecution …”
A declination based on Trump’s political status or the popularity of his cause would also violate the admonition that a person’s “political associations, activities, or beliefs” are not proper considerations for deciding whether to seek charges.
These standards are a recognition both of the difficulty of civil rights and other politically charged cases and of the importance of seeking accountability for actors who use the power of their government positions to subvert our most basic rights in a democratic system of government. Many historians and scholars who study how democracies decline have warned that societies that fail to seek accountability for corrupt political leaders endanger democracy by eroding faith in the rule of law on the part of the ordinary citizens whose belief that democracy is superior to autocracy is necessary to sustain it. And our own recent history has demonstrated that the failure to hold Trump accountable for his long history of potential crimes and abuses of power has cemented his belief that he is above the law. It is frankly difficult to imagine how a hung jury or acquittal of a man who has already fomented a violent insurrection could embolden him any further. Instead, as a group of more than a thousand DOJ alumni recently wrote, allowing him to walk away without facing even the possibility of a penalty when there is sufficient evidence to prosecute him would surely embolden his authoritarian-minded successors while decimating the idea that the president is not a king.
* * *
By every objective measure, and according to the judgment of numerous former federal prosecutors, and now a sitting federal judge, former President Donald Trump committed crimes when he – unlike any U.S. president before him – refused to accept the results of a free and fair election and attempted to overturn it. Many regular citizens who acted on Trump’s false claims and exhortations have been convicted of the same charge that Trump would likely face if indicted. And far from being weak, the evidence that Trump knew he could not obstruct an official proceeding to maintain himself in office is, as a legal matter, overwhelming and of a kind used to convict ordinary and high-profile Americans every day. Attorney General Garland has repeatedly said that the DOJ will seek accountability for anyone, at any level, who is legally responsible for the insurrection that culminated on Jan. 6, and that the Department’s charging decisions would be governed by the facts and the law, not politics. For all these reasons, we have cause to expect that the DOJ’s investigation will result in charges against Trump if the admissible evidence matches what we have seen in the public record. And when and if that happens, justice has far more than a fighting chance to prevail.