It probably won’t be a popular position. The precedent set by Trump is dangerous and disturbing, leading to a violent attack on the U.S. Capitol and persistent bad faith attempts by his supporters to undo the result. It is not surprising that Congress is investigating this matter. But the evidence of Trump’s behavior we have now – and I stress now– does not deserve criminal prosecution. It’s not because Trump’s actions weren’t wrong – they were – but rather because what we know he did doesn’t align squarely with all four corners of federal criminal law.
The most prominent supporters of a Trump criminal investigation are three lawyers I know and respect greatly. Recently, Laurence Tribe, Barbara McQuade and Joyce White Vance drafted a “road map” for a potential criminal investigation into Trump. They offer eight possible charges, ranging from conspiracy to RICO. I admire their creativity, but because Trump’s conduct was so Unusually, any of the charges they set out would represent a “first of its kind” case. I have sued one of them before, and they present their own particular set of challenges and risks, as there is no legal precedent to guide prosecutors.
They suggest that, for example, Trump may have violated the Hatch Act by pressuring his acting attorney general to “just say the election was corrupt.” While this would have been false and would constitute an unprecedented abuse of power, it is not the sort of thing that constitutes “political activity” for the purposes of the Hatch Act.
The Hatch Act was intended to prevent career public servants from being pressured into partisan political activity. For example, a federal employee sending fundraising emails from work or asking for votes. Publishing a statement about corrupt activity uncovered in a DOJ investigation would be official government activity. In that case, of course, it would have been dishonest for the benefit of the president. But that kind of dishonesty does not in itself turn an official act into “political activity”, and neither does the mere fact that the then president had a political motive.
Likewise, their suggestion that the President’s office was a criminal enterprise for the purposes of a charge under the Racketeering and Corruption Organizations Act (“RICO”) is new. RICO is typically used to prosecute mafia bosses and street gangs, and it would be a challenge to convince 12 jurors beyond a reasonable doubt that the president pressuring an election official in Georgia has turned the Oval Office at the center of an ongoing criminal enterprise.
As Tribe, McQuade and Vance rightly note, Trump’s role in instigating his supporters to attack the U.S. Capitol would itself be difficult to prosecute criminally. Certainly, Trump’s tweets and statements stoked his supporters, who ultimately engaged in a brutal attack that left several dead and nearly hampered the peaceful transfer of power. But the First Amendment law gives wide protection to speech, so any lawsuit against Trump would involve taking up various defenses he has. For example, under the First Amendment incitement is protected speech if it does not incite “imminent illegal action”.
A better argument can be made that Trump’s phone call with Georgian Secretary of State Brad Raffensperger was an effort to obtain fake ballots, given Trump’s statement that he wanted to “find 11,780 votes.” Trump lobbied Raffensperger and his lawyer, saying not finding “corrupt” ballots would be a “criminal offense” and a “big risk” for Raffensperger and his lawyer.
The case is already under investigation by Fulton County prosecutors, who may sue Trump in state court. But the most relevant federal criminal law would probably be extortion, and any prosecutor dealing with an extortion case under these circumstances would have a hard time proving their case. Trump’s statements – and his frame of mind more generally – were rambling and confusing. This is standard behavior for Trump, but it presents complications for prosecutors.
In a jury trial, it is unclear how the government could prove beyond a reasonable doubt that Trump did not really believe the lies he was peddling or that he intended to extort Raffensperger given that he framed his threat in terms of Raffensperger’s criminal liability. so as not to eradicate “corrupt” ballots. Personally, I don’t believe Trump, but the risk that at least one in 12 jurors might doubt that he actually intended to threaten Raffensperger would concern any reasonable prosecutor handling this case.
Prosecutors are not supposed to charge cases they aren’t sure they can prove, and there is a serious risk of suing the immediate past President of the United States and failing to convict him. This could set a precedent that Trump’s actions were allowed or at least impossible to continue and would strengthen Trump’s claim that he is politically persecuted.
While I think there isn’t enough evidence to prosecute Trump criminally now, I don’t agree with Jeffrey Toobin’s recent claim that no investigation is needed. His views have been ridiculed by many in part because he falsely assumed that what we know publicly is the extent of the evidence available to law enforcement. He should have known better. Based on the seriousness of Trump’s misconduct and its vital importance to the nation’s civic health, an investigation is warranted. But the public should not have unrealistic expectations of the outcome of this investigation.
And because a lawsuit against Trump is unlikely, the evidence uncovered in this investigation may never be made public, given grand jury secrecy rules. For this reason, Congress must aggressively investigate these matters and make public any evidence they find, so lawmakers can craft new laws to ensure that Trump’s wrongdoing never happens again and is promptly punished. ‘they reproduce.