Time for Justice Department to Put Trump in the Dock

             Donald Trump’s supporters are circulating in the blogosphere a meme that shows Hillary Clinton and Barack Obama as “corrupt politicians” who belong in jail. The crude meme contains no bill of particulars of the crimes that Clinton and Obama supposedly committed.

            By contrast, two former federal prosecutors joined last week [Aug. 5] in laying out a roadmap of federal offenses that Trump may have committed in his fraudulent efforts to overturn the results of the 2020 presidential election. Barbara McQuade, a former U.S. attorney in Michigan, and Joyce White Vance, a former U.S. attorney in Alabama, joined with Harvard’s Laurence Tribe in an op-ed in the Washington Post to urge the Justice Department now to open a criminal investigation of Trump.

An official investigation, the former federal prosecutors point out, would allow prosecutors now to begin obtaining the evidence – phone records, emails, memos, and so forth – to determine whether Trump should be charged. McQuade and Vance are both now law professors at their state university law schools and occasional legal analysts on CNN; Tribe, one of the country’s leading constitutional law experts,  is also a talking head with frequent appearances on CNN and MSNBC.

Regardless of any political bias, the two former prosecutors present a strong case that Trump may have violated federal law with his acknowledged conduct. They cite in particular his threatening phone call to Georgia’s state elections chief to find the votes needed to upset Biden’s victory in the Peach State and his now disclosed phone call to acting attorney general Jeffrey Rosen  asking that the Justice Department announce that the election was “corrupt” and leave the rest to Trump and Republicans in Congress.

            My own instinct as legal affairs reporter was to view Trump’s two phone calls as crossing the line from politics into criminality. With their greater experience with the U.S. Code’s Title 18, McQuade and Vance substantiated my instinct by specifying half a dozen crimes that Trump may have committed:

            Conspiracy. Federal law, the former prosecutors point out, makes it a crime “for individuals to agree to defraud the United States by interfering with governmental functions.” They note that special counsel Robert Mueller included such a charge in the indictment against the Russian Internet Research Agency by accusing the Russians of “impairing, obstructing, and defeating the lawful functions” of government agencies.

            Obstruction of official proceedings. The former prosecutors also suggest that Trump may have joined with his lawyer, Rudy Giuliani, the bombastic Alabama congressman Mo Brooks, and his White House advisers, in an effort to obstruct Congress’s statutory duty to certify the election results on Jan. 6. Trump and his allies, the prosecutors suggest, used disinformation to sow unfounded doubt to try to induce members of Congress to vote against certifying the election results and throw the election into the House of Representatives.

            Racketeering. The former prosecutors also suggest invoking the federal anti-racketeering law known as RICO, which has long since gone beyond its primary purpose of attacking organized crime. A RICO count, they point out, would require the government to show that the office of the presidency was an enterprise affecting interstate commerce and that Trump had committed at least two racketeering offenses. Extortion is one of RICO’s predicate offenses, the former prosecutors point out, defined as “transmitting a threat to harm another’s reputation with intent to extract something of value.” Trump, the former prosecutors recall, suggested in his phone call with Georgia’s election chief Brad Raffensperger that he might have committed a crime and “that’s a big risk to you.” With those details, the former prosecutors suggested, Trump’s phone call “could fit” the definition of extortion.

            Voter fraud and Hatch Act. The former prosecutors also note that an Election Code provision -- 52 U.S.C. § 20511 – makes it a crime to “attempt[ ] to deprive or defraud the residents of a state of a fair and impartially conducted election process.” Moreover, the former prosecutors suggest, Trump’s phone call to Rosen may have violated the Hatch Act, the federal law codified at 5 U.S.C. §7323 that makes it a crime for a federal official to use “official authority or influence for the purpose of interfering with or affecting the result of an election.”

            Insurrection. The former prosecutors also suggest, with a caveat, that Trump might be charged with insurrection – prohibited by 18 U.S.C. §2383 – or seditious conspiracy. But they acknowledge that the Justice Department might hesitate to bring either of those charges on the ground that a court could find Trump’s Jan. 6 speech to be short of the Supreme Court’s definition of “incitement” and on that basis protected by the First Amendment.

            The House of Representatives could include any combination of these possible offenses in yet another bill of impeachment against the former president, but the Senate’s Trump-coddling Republicans would again prevent a conviction. In a court of law, on the other hand, a grand jury indictment would be tried by an impartial jury on the basis of the law and the evidence rather than politics. Tribe and the former prosecutors acknowledge the risk that a criminal investigation of Trump by Biden’s Department of Justice might appear political.

            The former prosecutors emphasize that Trump, out of office, is unprotected by any presidential immunity. “Attempted coups cannot be ignored,” they write in conclusion. “If Garland’s Justice Department is going to restore respect for the rule of law, no one, not even a former president, can be above it. And the fear of appearing partisan cannot be allowed to supersede that fundamental precept.”