What if Trump and others crossed the legal line?
Awhile back, I posed the hypothetical question: What if President Trump and his closest advisors had not committed any crimes in attempting to reverse the 2020 presidential election? I was raising that question to demonstrate that the partisans who have reached a guilty verdict in the vigilante court-of-public opinion are motivated by hateful partisanship more than an understanding of the Constitution and law. It is the same dynamic that has them accusing the Capitol Hill rioters with insurrection when so far not a single case of insurrect has been charged by prosecutors in more than 600 cases.
Fighting the legitimacy of certain ballots, demanding recounts, going to the courts, voting against certification are all perfectly legal. As is lobbying state legislatures to replace the elected Electors with a new slate is legal. Even peacefully demonstrating to pressure members of Congress to vote against certification is legal.
It is not even illegal for an attorney to suggest extreme actions – such as asking the military to seize the voting machines. Taking such action, may well be an abuse of power – but that never happened. Acting badly is not necessarily a crime.
Even alleging Executive Privilege is not a crime. That is simply a matter for the federal judiciary to resolve. It is a Constitutional question.
Rioting, of course, is not legal – and so far, that is the extent of the known criminality. It will be very difficult to prove that even the rioters were in a coordinated and directed effort to overthrow the government and put Trump back in the White House by force. That is just a bridge too far.
As a counterpoint, we can examine what possibilities there may be in which Trump or his minions actually committed crimes – not ill-advised actions, extreme measures or even boneheaded plans – but real crimes that would stand up in a court-of-law.
Probably the two most prominent charges would be “abuse of power” and “obstruction of justice.” On the fringe might be “inciting a riot.” There could evolve ancillary charges, such as “lying to investigators,” “contempt of Congress” (as we see rolling out) and “perjury.” It is possible that investigators may find some examples of “destroying evidence” or “destroying public records” that are required to be maintained. (Think Hillary Clinton and the infamous server.)
Ironically, the accusation most advanced in the court-of-public opinion by a compromised news media – insurrection, sedition, and coup-plotting – are not likely to be charged in any of the cases.
To bring criminal charges successfully, there are two major hurdles. The first is defining what a person meant. Trump did make a call to Georgia Governor Brian Kemp to request that he “find 11,780 ballots.” Was Trump assuming that there would be at least that many illegal or improper ballots to be found or was he asking the Governor to do something illegal? That will be a debatable point in a court-of-law. Unless there is clear evidence that Trump wanted Kemp to tamper with the legitimate count, it will not be an easy case to prove beyond a reasonable doubt.
The second problem with criminal charges is you must establish “intent.” Did Trump “intend” for rioters to storm the Capitol in a violent manner or was he just calling for supporters to protest the certification in a constitutional manner.
It is very possible that those meeting at the Willard Hotel were planning actions that went beyond bad judgment. Trump may have abused his power at some point. He and others may have obstructed justice in the legal sense – as opposed to simply not cooperating.
If any of the aforementioned crimes can be established, then the Department of Justice will be handing down indictments – and that could include Trump, himself. He is not immune from criminal prosecution – although there is a tradition of not proceeding against former Presidents or even top officials.
As of this point, there has been no evidence – hard court-type evidence – that any crimes have been committed. Potential crimes are being investigated by the Department of Justice, but there has not even been a hint of what they might have found – or are pursuing. We will just have to wait and see.
While the House Select Committee is investigating the Capitol Hill riot, they have no power to hold anyone accountable. They can only make politically based accusations and refer any criminal allegations to the Justice Department. It will all end up there – eventually.
And by “eventually,” I mean a rather long time. None of the folks with targets on their backs will be send off to the hoosegow before the 2022 election – and maybe not even before the 2024 election. Maybe never. Other than contempt of Congress, I cannot imagine that even if crimes are alleged and indictments handed down, there will be any trials for a year or more – maybe several years.
The underlying question is whether all the public accusations and political showboating will negatively impact on Republican candidates in 2022. THAT is what virtually all this obsessive attention to concocted insurrections and fantastical coup plots is all about.
It is mostly a game of optics and political propaganda. There may be crimes that have been committed. People may get indicted and convicted – but it is likely to be for more minor – albeit serious – offenses. And even then, justice would not be served for a very long time.
To paraphrase the cliché, we have a donkey laboring mightily that will bring forth a mouse – at best.
So, there ‘tis.