Washington — The revelation late Tuesday that the Justice Department’s investigation into the events of Jan. 6, 2021, now includes questions about the actions of former President Donald Trump and his allies has heightened speculation as to whether the former president could face legal trouble for his conduct related to the assault. And as federal prosecutors all the way up to Attorney General Merrick Garland are facing growing external pressure to prosecute Trump, the crucial question remains as to what federal crimes might be successfully brought and tried against the former president.
As part of its probe, the Justice Department has been examining a scheme to name fake slates of presidential electors for Trump in key battleground states he lost in the 2020 presidential election. The Justice Department has also been examining the actions surrounding the Jan. 6 attack, when a mob of the former president’s supporters, many of them armed, breached the Capitol building to stop Congress from tallying state electoral votes and reaffirming President Biden’s victory.
Former Trump White House aides, including Marc Short, who served as chief of staff to former Vice President Mike Pence, have testified before a federal grand jury investigating the attack, and U.S. law enforcement agents have targeted former Justice Department official Jeffrey Clark and conservative attorney John Eastman as part of the probe.
Trump, Eastman, and Clark have not been charged with any crimes or accused of wrongdoing, and the news that questions are being asked about the former president’s conduct does not indicate Trump is the target of any federal probe. The former president maintains he did nothing wrong, and continues to claim, without evidence, that the election was rigged.
The investigation from federal prosecutors is running alongside the wide-ranging examination of the events surrounding Jan. 6 from a House select committee, which concluded a tranche of eight public hearings last week, though more are expected.
Across the hearings, the House panel mapped out what it described as a multi-pronged campaign by Trump to remain in power, which included efforts to pressure Pence and state elections officials to reverse the results of the 2020 presidential election, and to push top Justice Department officials to challenge the election outcome, culminating with the mob of his supporters violently descending on the Capitol.
The former president’s plans ultimately failed, though, and Mr. Biden’s victory was reaffirmed by Congress in the early morning hours of Jan. 7.
Despite that failure, legal analysts and former prosecutors have honed in on two specific criminal charges that they say might pose a legal threat to the former president: obstruction of an official proceeding — the Jan. 6 joint session of Congress to tally electoral votes — and conspiracy to defraud the United States. The charges, experts said, would focus on Trump’s alleged knowledge that the election was not stolen and his attempt to halt the peaceful transfer of power despite knowing he lost.
Randall Eliason, a former assistant U.S. attorney for the District of Columbia, said obstruction charges could stem from both the plan to name fake electors to cast their votes in Trump’s favor and the strategy hatched by Eastman for Pence to unilaterally reject electoral votes from key states during the Jan. 6 proceedings or send them back to the state legislatures.
Conspiracy to defraud the U.S., meanwhile, applies to corrupt efforts to obstruct a lawful government function: the certification of election results by Congress on Jan. 6.
“For any of the charges, it’s all going to be in the nature of a conspiracy charge,” Eliason, a law professor at George Washington University, told CBS News. The conspiracy charge requires a broader plan among co-defendants to commit a crime. “There’s the potential for senior people like Rudy Giuliani, Mark Meadows also to be implicated in the same case.”
Neither Meadows, Trump’s former chief of staff, nor Giuliani, his outside attorney, have been charged with any crime. The House Jan. 6 committee recommended Meadows be charged with contempt of Congress for refusing to comply with a subpoena, but the Justice Department declined to charge him.
The Justice Department could also pursue a charge of seditious conspiracy, Eliason said, though that would require prosecutors to show Trump conspired to use force “to prevent, hinder, or delay the execution of any law of the United States.” Members of the Oath Keepers and Proud Boys, two far-right extremist groups, have been charged with seditious conspiracy for their roles in the Jan. 6 attack.
Scott Fredericksen, a former federal prosecutor and independent counsel, said bringing charges like seditious conspiracy and inciting a riot against the former president would demand a “higher standard” of evidence for prosecutors, who would have to both indict Trump and attempt to successfully convict him at trial.
Fredericksen believes the Justice Department should be examining the “whole concept” of the so-called “Big Lie,” the claim continually pushed by Trump that the election was stolen. Prosecutors, he said, “should be able to prove pretty clearly that Trump knew very well that he lost the election, this election was not stolen, and that was a complete fabrication,” which, according to Fredericksen, would make Trump’s claims and later attempts to prevent the transfer of power a potential aspect of a criminal conspiracy.
“It’s not just Jan. 6,” Fredericksen told CBS News, “Jan. 6 is, in some ways, the culmination.”
Testimony obtained by the committee sheds new light on the extent to which top White House and administration officials, as well as campaign advisers, told Trump his claims of widespread voter fraud were unfounded and encouraged him to accept his loss, though their warnings did little to deter Trump’s dogged efforts to thwart the transfer of power.
While Eliason said much of what has been revealed by the select committee in the course of its investigation thus far is potentially relevant to a case brought against Trump, “criminal charges have a much higher burden of proof.”
“It’s got to be as close to air-tight as it possibly can be, because it’s one thing to have testimony at a hearing that’s not being challenged, it’s quite another to have it at a trial where you’re subject to cross-examination and defense witnesses,” he said. “That would be a very different kind of animal. You have to prove guilt beyond a reasonable doubt before a unanimous jury of 12.”
Looming large over the potential for Trump to face charges is the unprecedented nature of such a case, as never before in U.S. history has a former president been prosecuted by the Justice Department, never-mind one who continues to tease another White House run.
A decision of whether to pursue criminal charges would be “the most consequential decision made by any attorney general,” Eliason said, and raises “weighty” issues to consider, including that such a move would involve an administration prosecuting the former president of the opposing party.
Fredericksen agreed: “The whole idea of politics pervades this entire case. It’s why I think the Department of Justice is extremely careful and reluctant to investigate, let alone charge, a former president. … It’s never been done before because it will be perceived by a good portion of the country as a political prosecution.”
“A prosecutor is going to stay away from charging any crime for which he uses some kind of political activity. A prosecutor is not going to touch that,” Fredericksen said, adding that the legal line between political acts and criminal acts is a complicated barrier for prosecutors. “On one hand, it could be political, but when it’s employed with the idea of overthrowing the government, then that’s criminal.”
To avoid the perception of politicization, prosecutors should proceed as they would in any other criminal case by interviewing witnesses, securing cooperation, and gathering as much evidence as possible, Fredericksen said.
“There is no special formula,” he added.
With each new revelation about the events surrounding Jan. 6, Garland has continued to come under scrutiny about future action by the Justice Department. In an interview with NBC News that aired Tuesday, Garland stressed, as he has before, that the Justice Department would “bring to justice everybody who was criminally responsible for interfering with the peaceful transfer of power from one administration to another, which is the fundamental element of our democracy.”
Still, Garland’s vow to hold all who broke the law, “at any level,” accountable has done little to assuage some congressional Democrats and critics of Trump, who are pushing for a case to be brought swiftly.
But Eliason said the probe is moving at a pace that should be expected given its “size and complexity” and noted that prosecutions stemming from Watergate and Enron spanned several years.
“Prosecutors are moving up the ladder higher and higher, closer and closer to the inner circle,” he said, referencing the recent appearance of Short before a grand jury. “We don’t know how that ends, that doesn’t mean charges will be found to be justified, it just means they’re doing what Garland has said, starting with the rioters and working your way up.”
The Justice Department and the U.S. Attorney’s Office in Washington declined to comment.