Some observers have likened the July 21 hearing of the U.S. House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol to the season finale of a popular TV show. In that “episode,” the then-president of the United States did nothing to stop, and at times seemed to encourage, a violent insurrection at the Capitol that sought to overturn a legitimate election.
Season 1 even ended with a cliffhanger: Will the former president be held accountable for his actions?
Though it has no power to charge former President Donald Trump with crimes, the Jan. 6 committee can make criminal referrals to the Justice Department. To date, the committee has amassed considerable evidence of criminal wrongdoing by the former president, including obstruction of a congressional proceeding, conspiracy to defraud the United States and seditious conspiracy.
Of course, the Justice Department is doing its own investigation of the Jan. 6 attack, and federal prosecutors are reportedly interested in Trump’s role.
In deciding whether to indict the former president, the Justice Department has at least two questions to consider. The first is whether the evidence it has is sufficient to win a conviction. That’s difficult to know because not only are jury trials unpredictable, but jurors may expect especially convincing evidence if they are to convict a former president.
Making this decision even more difficult is the fact that federal prosecutors would have to establish criminal intent on the part of Trump. That is, they’d have to show that the former president knew that what he was doing was wrong. To that end, the Jan. 6 committee has provided evidence, for example, that Trump was told that the scheme to have Vice President Mike Pence disregard the certified electoral votes from several states was illegal.
The committee has also shown that Trump was told numerous times by numerous advisers, including his own attorney general, that the election outcome was neither fraudulent nor stolen. He was told that the conspiracy theories being floated by Rudy Giuliani and others were “crazy” and unfounded. Thus, when Trump continued spreading the Big Lie about the election, he was engaged in “willful blindness” to the facts and, thus, should have known that any attempt to overturn the election was wrong.
But did he actually know that to be the case? Or did he believe the claims of Giuliani over those of “Team Normal,” as Trump campaign manager Bill Stepien referred to the set of advisers who were acknowledging reality?
Former Attorney General Bill Barr noted in testimony aired on the second day of the committee’s hearings that Trump would have been “detached from reality, if he really believes this stuff [i.e., Giuliani’s allegations].” Truly believing that stuff might be delusional, but it would also be a defense against criminal intent.
The second and more vexing question the Justice Department must answer is whether putting a former president on trial is in the public interest. Such a trial would be extremely divisive and would be viewed by a significant portion of the public as a political hit job. Who knows how some of Trump’s more fervent supporters would respond?
But not indicting Trump would alsobe viewed as a political decision. It would be seen by many as surrendering to the threat of mob violence and it would surely undermine faith in the notion that “no person is above the law in this country,” as Attorney General Merrick Garland recently insisted.
Given the severity of the alleged crimes — which amount to subverting American democracy — the damage done by not prosecuting Trump must surely be greater than the conflict that would be triggered by prosecuting him. But that is by no means certain, and we should brace for the fact that, at this point, whatever the Justice Department does will prompt significant political fallout.
During his time in the White House, Trump sought to politicize every aspect of government, including the justice system. This was particularly true in the period between the Nov. 3, 2020, election and Jan. 6, 2021. As a result of the select committee hearing on June 23, we now know that, but for the threat of mass resignations of Justice Department officials, Trump would have replaced acting Attorney General Jeffrey Rosen with Jeffrey Clark, who was seemingly willing to enact the illegal scheme to overturn the election that White House Council Pat Cipollone called a “murder-suicide pact.”
The politicization of everything is a well-worn tactic of authoritarian leaders. When everything is political, any attempt to constrain such a leader — including legal proceedings — will itself be labeled “political.”
Incidentally, a recent Axios report notes that Trump is developing plans to politicize as much of the federal bureaucracy as possible in a potential second term — replacing nonpartisan, career civil servants with political allies. His primary targets, according to the report, are “the Justice Department – including the FBI, and reaching into national security, intelligence, the State Department and the Pentagon.”
Normally, politics itself would be a route to holding Trump accountable. Were the public to overwhelmingly reach the judgment that the former president’s behavior in the weeks leading to, and on, Jan. 6 was abhorrent and unacceptable; and were they to decide that he should never again hold public office; and were they further to decide that those who condoned, or even abetted, his behavior should themselves never hold office, a significant measure of accountability would be attained.
Of course, agreement of this sort is virtually impossible in the current era of political polarization and partisan news consumption. Indeed, while there has been some movement away from Trump in the polls over the course of the hearings, most Republicans remain unmoved and quite loyal.
For instance, an NPR/PBS NewsHour/Marist poll completed on July 17 found that only 18% of Republicans placed a great deal or a good amount of blame on Trump for the events of Jan. 6.
In a Quinnipiac University poll conducted from July 14-18, just 27% of Republicans said they did not want Trump to run again in 2024. And virtually no Republican elected officials have abandoned the former president as a result of the Jan. 6 hearings.
Without high-profile defections, the GOP will remain the party of Trump.
Threat is ongoing
It would be a mistake to conclude that the threat to American democracy ended on Jan. 6. It is, in fact, ongoing. Just within the last few weeks, Trump called the Speaker of the Wisconsin State Assembly to urge him to toss his state’s 2020 election results because a state court had ruled against the use of absentee ballot drop boxes. The speaker says he made clear to the former president that doing so is “not allowed under the Constitution.”
As the select committee hearings have made abundantly clear, what’s allowed under the Constitution made no difference to those —including Trump — who sought to overturn the election on Jan. 6. Whether it will make a difference in future elections is up to those who prefer democracy to autocracy.
Stephen K. Medvic is the Kunkel Professor of Government and director of the Center for Politics and Public Affairs at Franklin & Marshall College.