The late-Tuesday revelation that the Justice Department’s investigation into the events of Jan. 6, 2021, now includes questions about former President Donald Trump and his allies has fueled speculation about whether the former president could face legal consequences for his role in the assault. And, as federal prosecutors all the way up to Attorney General Merrick Garland face increasing external pressure to prosecute Trump, the crucial question of what federal crimes could be successfully brought and tried against the former president remains unanswered.
The Justice Department is looking into a scheme to name fake slates of presidential electors for Trump in key battleground states he lost in the 2020 presidential election as part of its investigation. The Justice Department is also investigating the events surrounding the Jan. 6 attack, in which a mob of the former president’s supporters, many of whom were armed, stormed the Capitol building to prevent Congress from tallying state electoral votes and reaffirming President Biden’s victory.
Former Trump White House aides, including former Vice President Mike Pence’s chief of staff Marc Short, have testified before a federal grand jury investigating the attack, and US law enforcement agents have targeted former Justice Department official Jeffrey Clark and conservative attorney John Eastman as part of the investigation.
Trump, Eastman, and Clark have not been charged with any crimes or accused of wrongdoing, and the fact that questions about the former president’s behavior are being raised does not imply that Trump is the subject of any federal investigation. The former president maintains that he did nothing wrong and that the election was rigged, despite the lack of evidence.
Throughout the hearings, the House panel described Trump’s multi-pronged campaign to retain power, which included efforts to pressure Pence and state election officials to reverse the results of the 2020 presidential election, as well as efforts to push top Justice Department officials to challenge the election outcome, culminating in a mob of his supporters violently descending on the Capitol.
Despite that failure, legal analysts and former prosecutors have zeroed in on two specific criminal charges that they believe could pose a legal threat to the former president: obstruction of an official proceeding (the joint session of Congress to tally electoral votes on Jan. 6), and conspiracy to defraud the United States. Experts predicted that the charges would center on Trump’s alleged knowledge that the election was not rigged and his attempt to halt the peaceful transfer of power despite knowing he had lost.
According to Randall Eliason, a former assistant United States Attorney for the District of Columbia, the obstruction charges stem from both the plan to name phony electors to vote in Trump’s favor and Eastman’s strategy for Pence to unilaterally reject electoral votes from key states during the Jan. 6 proceedings or send them back to state legislatures.
Meadows, Trump’s former chief of staff, and Giuliani, Trump’s outside attorney, have not been charged with any crime. Meadows was recommended by a House committee on January 6 to be charged with contempt of Congress for refusing to comply with a subpoena, but the Justice Department declined to charge him.
Former federal prosecutor and independent counsel Scott Fredericksen said charging the former president with seditious conspiracy and inciting a riot would require prosecutors to meet a “higher standard” of evidence because they would have to indict Trump as well as try to convict him.
Fredericksen believes the Justice Department should investigate the “whole concept” of Trump’s so-called “Big Lie,” the claim 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, that this election was not stolen, and that was a complete fabrication,” which, according to Fredericksen, would make Trump’s claims and subsequent attempts to prevent power of a potential aspect of a criminal conspiracy.
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.
