A TRIAL FOR THIS CENTURY

So, my original idea is that the Department of Justice (DOJ) should prosecute former President Donald Trump for seditious conspiracy.

Actually, that's not my original idea . . .

As in I thought of it first.

Here's my original idea:

Attorney General Merrick Garland should appoint former Judge J. Michael Luttig as a Special Assistant Attorney General and task Judge Luttig with convening a grand jury, presenting evidence, deciding whether to indict Trump for any crimes arising out of the January 6 insurrection and all its antecedent causes, and then trying Trump on any such indictment issued.  DOJ should give Luttig the authority to staff up his team and Luttig should recruit lawyers to fill that staff.  Critically, it should be a requirement for service on Luttig's staff that any such lawyer be a registered Republican. 

The United States criminal code provides that "if two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both."  (18 USC § 2384) 

As of this morning, four public hearings before the Select Committee to Investigate the January 6th Attack on the US Capitol have been held and additional sessions are scheduled for both this afternoon and next month. 

Colloquially known as the January 6 Hearings, the Select Committee has  provided a mountain of evidence -- via live testimony, video exhibits of the January 6 insurrection itself, and deposition testimony from scores of witnesses -- that (i) Trump's claims that the 2020 election was rigged, stolen or fraudulent were and are completely false; (ii) his Attorney General, White House lawyers, the head of his campaign and others on the White House staff and in Congress told him those claims  were false (and many others, including his daughter Ivanka and son-in-law Jared, believed they were); (iii) the courts told him those claims were false; and (iv) recounts or audits in the battleground states of Georgia, Michigan and Wisconsin told him those claims were false.

The Select Committee has also laid out evidence that, despite these incontrovertible facts, Trump pressured state officials in Georgia and Arizona to "find" votes and de-certify Biden's victory, and Trump and one of his attorneys, John Eastman, solicited fraudulently created fake slates of Trump electors. Trump and Eastman demanded that these fake slates be recognized or used by Vice President Pence and that Pence then either declare Trump president as Pence presided over the joint session counting the electoral college votes on January 6 or send the election back to selected state legislatures (or to the House of Representatives), either of  which would have thereafter awarded Trump the presidency.  These acts were patently illegal.  In fact, Eastman himself had admitted as much two days earlier in a conversation with Pence's counsel, Greg Jacobs.  Legally,  Pence's only job on January 6 was to count certified electoral votes that had been sent to Congress by the states.  He had no unilateral right to do anything else and certainly no unilateral right to accept fraudulent slates or send the election back to any states or into the House of Representatives.  

On the morning of January 6, in order to force Pence to agree to his illegal demands, Trump repeated to a crowd of thousands of his supporters all of the refuted lies he had been telling them for months (i.e., that thousands of dead people and illegals had voted, that hundreds of thousands of fraudulent absentee ballots had been accepted in Wisconsin, that over twenty thousand votes had been switched from Trump to Biden in Georgia, that Dominion voting machines had a "93.67% error rate",  that there were "more votes than voters" in Detroit, etc.).  He then told the crowd that Pence had the power to award him the presidency and that  they should march to the Capitol and "fight like hell" to secure that result. 

So that is what they did.

Advised along the way that Pence had not accepted Trump's illegal demand, many in the crowd said they were "coming" for Pence and, once inside the Capitol that they proceeded to terrorize and vandalize, threatened to kill the Vice President.  Advised that the Capitol had become the scene of a riot, Trump -- instead of telling his supporters to leave the Capitol -- egged them on. At 2:24 pm he  tweeted that "Mike Pence didn't have the courage to do what should have been done".  The result of this tweet was that the rioters became more violent.  At the White House, staffers who had been urging the President to quell his supporters were aghast.  As one put it in video testimony that was played at last Thursday's session of the Hearings, "It felt like he was pouring gasoline on the fire by tweeting that."

He was.

In my opinion, there is more than enough evidence to indict Trump on the charge of seditious conspiracy.  He and Eastman concocted an illegal plan to "prevent, hinder or delay" the joint Congressional session counting the electoral college votes on January 6.  He did so by advocating that the mob he sent to the Capitol use force ("fight like hell") to get Vice President Pence to unilaterally overturn the certified results sent to Congress by the states.  When advised that the mob was violent and that Pence was in danger, he did not tell his supporters to leave the Capitol.  Instead, he supported the attack, telling them Pence has not done "what he should have done". 

Put simply, his 2:24 pm tweet amounted to a single piece of advice.

He wanted the insurrection to . . .

Continue.

Apart from seditious conspiracy, there are other crimes for which Trump could be indicted arising from his conduct on, before and after January 6.  These include obstructing an official proceeding, conspiracy to defraud the United States, and even wire fraud (owing to his fraudulent solicitation of contributions ostensibly for a so-called "Election Defense Fund" which did not exist; most of the money went to Trump's Save America PAC).  Seditious conspiracy, however, is the most serious crime and at base it most accurately describes the level of criminality to which Trump  descended and the continuing danger to democratic and republican government (small d and small r in both cases) the former president represents.

This last point is critical.

Had Trump been convicted by the Senate in either of the two prior impeachment trials, he would have been removed from office and precluded from ever serving again.  That should have happened.  Unfortunately, it didn't.  And because it didn't, Trump remains the odds-on favorite to be the Republican nominee in 2024.  He routinely repeats the claims that the 2020 election was stolen and that Joe Biden is not a legitimate president, and two-thirds to three quarters of Republican voters accept these claims as true.  Many of those voters live in states where the Republican Party controls all three branches of state government, and many of those states have now passed statutes designed to suppress Democratic turnout and allow partisan state officials to overturn electoral outcomes on the basis of the types of false, evidence-free claims Trump spouts. Were he to run and lose in 2024, he would invariably claim that election was fraudulent and again invite a mob to make him president at the point of their guns. Were he to run and win, he would govern as a fascist.

These are threats to republican government. 

They are the types of threats that brought down other republics, most notably Rome's.

And today Trump remains their centerpiece.

The mob that attacked the Capitol on January 6 was not peaceful.  It  did so either at Trump's request or with his permission and encouragement.  It was pregnant with violent, white-nationalist spearheads like the Proud Boys and the Oath Keepers, groups that led the charge and two of whose members have already pleaded guilty to seditious conspiracy themselves.  Their allegiance to Trump's malignant instincts and objectives cannot be underestimated. Nor can their potential links to the former president himself, or to any of his associates (like Roger Stone), be  rejected out of hand. Like Eastman, Stone has taken the Fifth in responding to questions by the Select Committee about his actions that day.

There needs to be a formal criminal process.  Witnesses have to be put under oath, targets flipped, deals struck. In the end, we need  an investigation, an indictment, and a trial. It needs to be full and fair. Justice Oliver Wendell Holmes, Jr. is reported to have once said that in heaven there is no law, and the lion shall lie down with the lamb; in hell there is nothing but law, and due process will be meticulously observed. Trump is our hell. He should receive all the due process we can offer.

Which brings me back to J. Michael Luttig.

Luttig is a former federal appellate judge.  He was nominated by President George H. W. Bush in 1991 to serve on the Fourth Circuit Court of Appeals and confirmed shortly thereafter.  At the time, he was 37 and the youngest federal appellate judge.  He got his JD from the University of Virginia Law School in 1981 and clerked for then Judge Scalia on the DC Circuit during the 1982-83 Term and for Chief Justice Burger during the 1983-84 Term. From the end of that clerkship until 1989, he was an associate at David Polk & Wardell, and from 1989 to 1991, he was a lawyer at the Department of Justice.

On the bench, Luttig was compared to Scalia. Both were conservative.  Both were smart. And both were, from time to time, unpredictable. In one of his more famous decisions, he dissented from the majority holding in Hamdi v. Rumsfeld that an American citizen captured in Afghanistan could be detained as an "enemy combatant".  The Supreme Court reversed that decsion, siding with him.

There are many problems that will arise in any effort to hold Donald Trump accountable under the criminal law for his conduct leading up to and on and after  January 6.  The biggest of these, however, can be summed up in one word:

Politics.

There is no way around the fact that, for better or worse, any prosecution of Donald Trump will run head first into claims that the decision was political.  Roughly half the country voted for Trump in 2020 and hates his successor, and roughly a third of the country now believes his false claim that the election was stolen. For those people, no prosecution or investigation by President Biden's DOJ can be anything other than political. Biden knows this, as does  Merrick Garland. In fact, it is the reason Biden has completely deferred to the Department of Justice on any decision to investigate or prosecute and that Garland himself has been more or less silent.

Permanent silence, however, is not an option.  

If Trump skates, if he is not investigated, indicted and tried, the rule of law as we know it dies.  

Don't take that from me. 

Take it from New Jersey's former Governor Chris Christie.

Christie is a Republican who wants to be president but admits that Trump lost in 2020, lied repeatedly about that fact thereafter, and was responsible for the Janiuary 6 insurrection.  He also knows that Trump destroyed a national treasure -- the peaceful transfer of power -- and that there is more than enough probable cause to support an indictment  Nevertheless, for the past month or two in regular appearances as a commentator for ABC News, Christie has argued that Trump must be treated differently from any other potential criminal defendant.  

The Justice Department's manual for prosecutors states that an "attorney for the government should commence or recommend 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, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution."  More particularly, the Comment to that provision expressly states that "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 the reasons noted above, I think a criminal prosecution of Trump easily satisfies DOJ's manual.  I believe Trump is guilty of seditious conspiracy under federal law and that a mountain of evidence already exists to prove that case.  No other jurisdiction can or will indict him for this crime and the national interest is self-evident.  Finally, whatever inveterate Trumpists feel, and notwithstanding the former president's continuing hold on his so-called "base", the manual tells me all that is irrelevant.

None of this is news to Chris Christie.

He is a former US Attorney.

He knows the manual.

But he refuses to follow it. 

"This is where justice is not equal necessarily in our country," says Christie, "It's different . . .  prosecuting a former president of the United States.  If you're a prosecutor looking at this, you cannot swing and miss . . .  It has to be a 99.9% winner because the damage you will do to the country if you swing and miss is incredible.  I think there is a different standard and that standard is going to be applied by institutionalists like Merrick Garland. That is why I think it is unlikely" Trump will be prosecuted.

I disagree with Gov. Christie.  

More to the point, I think his position is dangerous.

I am a former federal prosecutor.  There are no cases that go to trial that are 99.9% winners. Lots can go wrong.  You can get a bad jury or a few bad jurors.  The judge can make a mistake. The lawyers can make a mistake. The facts may not be 100% on your side; in fact, they usually aren't.  So, if you accept Governor Christie's position, no ex-president will ever be subject to a federal criminal trial once he leaves office. And, if you combine that fact with (i) the existing DOJ policy that precludes indicting a sitting president and (ii) the super-majority of self-interested Senators (many of whom will not oppose their constituents) required to convict upon impeachment, both of which were earlier avenues of escape for Trump, you have effectively made the president  above the law.

Sometimes this won't matter.  

It didn't, for example,  in 1974, when the country was less polarized and the president less narcissistic. 

Nixon, however, had the ability to admit guilt and quit.  

Trump never will.

One way or another, therefore, Trump must be held accountable  If the January 6 Hearings end with no accountability, without even an attempt at it,  we will have, in the famous words of Churchill, "decided only to be undecided, resolved to be irresolute", and the rule of law will meet its end.  It will have done so, moreover, not because we failed but rather because we were paralyzed.  In fact, for the past seven years, that has been Donald's trump card, as it were.  He could always count on shocking, insulting or boring us into inaction . . .

Or exhaustion . . .

Or despair.

J. Michael Luttig might be able to break that logjam.

For two reasons.

First, no one will be able to credibly contend that any decision by Luttig was political.  The former judge is a poster child for Republican jurisprudence. He  has spent the better part of his life in service to either GOP presidents or a conservative view of the law.  If he indicts and then obtains a conviction of Trump, the country will know that the law, not the Democrats, brought the former president to his knees.

Second, Luttig is a pro.  He may look at the case, investigate it thoroughly, and then still decide that he does not have enough evidence to obtain a conviction on a charge sufficiently important to warrant the effort.  His long statement to the Select Committee made it clear that he thinks Trump morally culpable and, further, that he thinks only Republicans can lance that boil by rejecting Trump, return the country to the "peace" that was inherent in presidential transitions until Trump destroyed it, and save us from an almost guaranteed  repetition in 2024 if Trump runs again.  What this also means, however, is that Luttig is by no means certain the criminal law can take Trump down and that Luttig will play it straight.

So, should we take the risk?

Contra Christie, I think we should.

If  Judge Luttig declines to prosecute, we will be in no worse position than Governor Christie is now predicting.  But if he indicts Trump, the country will be better off regardless of outcome.  Criminal trials often take on a life larger than themselves, larger than even the defendants or victims involved. Convictions are restorative and acquittals do not always exonerate.  Just ask O.J. Simpson.  One way or another, the country has a desperate need to rid itself of Trump, even if he is around. Senate Republicans refused the Founding Fathers' invitation to let impeachment do that job. And elected Republicans and their base voters continue to refuse to do it themselves.

So now there are no options left.

Other than an apolitial jurist . . . 

And a trial for this century. 

Go for it.