Prosecution of Trump and the Gang: The Ticking Clock

The hearings of the January 6 Committee have presented compelling evidence of criminality on the part of Donald Trump and his co-conspirators. And still more is certainly on the way. The evidence has been presented in a clear and well-organized manner that the public could readily understand. Even before the bombshells of the most recent hearings, their effectiveness was reflected in public opinions polls.

On June 29, Forbes reported that, according to a Morning Consult poll taken after the fifth hearing, two-thirds of all voters believed that Trump had sought to overturn the election, and approximately 49% of voters believed that he had committed a crime in the attempt to do so. While no more recent polling is available, it is virtually certain that those percentages will have increased significantly after the explosive revelations at the subsequent hearings on June 28 and July 12. (A useful chrononology of the hearings and a summary of each is available on Wikipedia.)

Even more important, the hearings appear to have finally gained the attention of the Department of Justice. A lengthy article in the New York Times on July 11, 2022 reported that the testimony of Cassidy Hutchinson at the hearing on June 28 had “jolted top Justice Department officials into discussing the topic of Mr. Trump more directly, at times in the presence of Attorney General Merrick B. Garland and Deputy Attorney General Lisa O. Monaco.” I find it frankly appalling that it took Ms. Hutchinson’s courageous and riveting testimony to get the Department to focus serious attention on the potential criminal liability of Mr. Trump. Indeed, it is appalling that Department of Justice prosecutors had not themselves interviewed Ms. Hutchinson and presented her testimony to a grand jury. If, as it appears, they were unaware of her identity and significant role, that is further evidence of the inadequacy of whatever investigation they have been conducting.

Equally problematic is the fact that, even now, the Department lacks adequate resources to conduct an adequate investigation. At the very end of the New York Times article, it was reported that the ongoing investigation of January 6 currently lacks such resources:

In March, the department requested $34.1 million to bring on an additional 131 lawyers for the investigation. It was ignored — infuriating senior department officials, who have privately noted the contradiction between congressional calls to speed the inquiry and the denial of resources the department needs to hire more prosecutors.

It is mystifying as well as infuriating that the Department’s request for funding has somehow been “ignored.” It is almost as troubling that, with the exception of the glancing mention in the Times, the Department’s inability to gain the necessary funding has gone unreported and unremarked upon in the media. Clearly such funding deserves priority attention from the Biden administration, Congress and the media.

Apart from the challenges of funding and prosecutorial backbone, the largest single obstacle to a successful prosecution of the Trump Gang may be timing. That is particularly true in the case of Trump himself. The prosecution of a former president is unprecedented and will no doubt give rise to a variety of legal maneuvers and issues. Some of the latter are apt to reach the Supreme Court, where they may find a sympathetic audience from the Trump appointees and their conservative colleagues. Even if the case against Trump survives a review in the Supreme Court, that will take time. All in all, it is unlikely that Trump could be indicted, tried, convicted, and his appeals resolved, before the 2024 election.

If a Trump prosecution is still pending at some stage in January 2025, and the new president is a Republican, it seems highly likely that charges would be withdrawn (as they were in the case of Mike Flynn) or a pardon granted. Might the new president be Trump himself? Could be. Ordinarily one would assume that an indictment and pending trial would be fatal to a presidential candidacy, but in the bizarre state of our current politics, who could say for sure? Finally, even if the new president in 2025 is a Democrat, he or she might grant a pardon in the hopes, perhaps misplaced, of “healing the country.”

Timing could be a less significant problem in the case of Trump’s alleged co-conspirators such as Rudy Giuliani, Mark Meadows, Sydney Powell, John Eastman, Steve Bannon and numerous others. The indictment and trial of such figures would involve less complicated legal issues and it is at least possible that trials and appeals could be resolved before January 2025. Pardons after trials and appeals would still be available, but might be more difficult politically and it is uncertain whether anyone would receive the benefit of such treatment. (It may be noted that the pardon of Richard Nixon did not result in pardons for John Ehrlichman and Bob Haldeman or any other Watergate defendants.)

In any case, it seems clear that if Attorney General Merrick Garland has finally been jarred into action, the actions of the Department should be not only thorough and aggressive, but pursued with some awareness of the clock. The Department, of course, must not depart from its high professional standards in deciding whom to prosecute and when, but the sooner it gets on with those tasks, the better.