The evidence is mounting against Trump…but is there any real chance of criminal prosecution?
On Tuesday, surprise witness Cassidy Hutchinson gave a bombshell testimony to the special House committee investigating the Jan. 6 riot on the Capitol. Now the odds of former President Donald Trump being prosecuted are “significantly higher” than before, according to former federal prosecutor Renato Mariotti. But what would he be charged with, and how likely is it that the former POTUS would be prosecuted at all?
During Tuesday’s livestreamed hearing, Hutchinson, a former aide to ex-White House Chief of Staff Mark Meadows, dropped a series of bombshells about what really happened in the White House in the days leading up to, and on the day of, the riot at the Capitol Building. And according to Mariotti, Hutchinson’s testimony “moved the ball forward significantly towards a potential [Department of Justice] prosecution of Trump.”
Hutchinson’s testimony wasn’t significant simply because it was shocking (though it seriously was). It mattered because it was the first eyewitness account given under oath of Trump himself behaving in a potentially illegal manner. Up until this moment, Mariotti noted, the only evidence of Trump’s behavior was indirect.
Now the House committee has the firsthand account they’ve been looking for. And even though other political figures have come out of the woodwork to dispute Hutchinson’s account, none of them are willing (yet) to dispute it under oath — which is another crucial reason why her testimony is so powerful.
Hutchinson’s testimony has dramatically increased the chances of Trump being prosecuted — but for what?
As Ankush Khardori writes for New York Magazine, the cumulative testimonies given during the Jan. 6 hearings, along with the structural organization of the hearing by leaders like Congresswoman Liz Cheney, seem aimed to “suggest that Trump intended for the violence to unfold that day as part of an effort to intimidate Congress and pressure Pence to throw the election to him.”
The committee hasn’t said that explicitly, of course. As of now, the only public goal of this hearing was to investigate what happened on Jan. 6. But a conclusion on the investigation, and a recommendation based on that conclusion, is expected to be released by the committee in the near future.
It’s looking increasingly likely that the conclusion will be some sort of argument that Trump was not just complicit, but actively involved in the Jan. 6 riot. And if that is the case, then there are several criminal implications for Trump.
Here are some of the crimes Trump could be charged with:
- obstruction of an official government proceeding
- witness tampering
- conspiracy to defraud the government
- incitement of insurrection or seditious conspiracy
All of these crimes offer a potential maximum punishment of decades in jail.
Interestingly, a civil case in March already set the legal groundwork for prosecuting Trump. In a case related to the House committee’s investigation, a federal judge in California concluded that Trump and one of his lawyers had committed numerous felonies related to their efforts to overturn the election. In that civil case, Judge David Carter suggested Trump was guilty of conspiracy to defraud the United States, and of obstructing a congressional proceeding.
The Department of Justice has prosecuted hundreds of people so far for crimes related to the Jan. 6 riot. But it hasn’t yet indicated if it plans to prosecute high-level government officials, including Trump. Earlier this June, Attorney General Merrick Garland explained how the process works for the DOJ.
“Eventually that information [on who we prosecute] comes out in the form of our search warrant affidavits, in our orders, and our pleadings and, eventually, if there are charges,” Garland said. “But for our investigations to proceed in an efficient way, we have learned over many, many years that this is the way our investigations should go.”
There are a few indications that the DOJ’s investigation is heating up: The New York Times reports that the House committee will start sharing transcripts of interviews with the federal prosecutors later this summer.
What would keep the Department of Justice from prosecuting Trump?
As much as Hutchinson’s testimony increased the likelihood of the DOJ prosecuting Trump, that outcome is far from guaranteed. As The New York Times notes, a prosecution of any former president — let alone one who plans to run for president again, and whose base is still extremely active in support of him — would be an uphill battle.
It’s not enough, after all, to prove that Trump did or did not behave a certain way on Jan. 6. For most of the charges listed above, prosecutors would have to prove the explicit intent behind Trump’s words or actions — and that’s a far more difficult task.
Following Hutchinson’s testimony on Tuesday, Trump released a 12-page statement that some have interpreted as the beginnings of a legal defense. In the statement, he denied many of Hutchinson’s claims, including her recollection that he attacked a Secret Service officer.
Trump also went on to defend not just his actions, but the actions of those stormed the Capitol, claiming they were trying to “hold their elected officials accountable for the obvious signs of criminal activity throughout the election.”
It has been proven, time and time again, that there’s no substantive evidence that the presidential election was “stolen.” But that doesn’t mean Trump wouldn’t use this line of defense in a courtroom. And given how engaged his political base remains, and how many of his supporters still fervently believe the false election claims Trump continues to make, prosecuting Trump could become a political nightmare for the Department of Justice — and for the American people, as well.
Others argue that this shouldn’t matter, and that fears of a growing political schism cannot keep the Department of Justice from upholding the rule of law, especially for an instance like this.
As for what the American people think, the response is predictably divided: A recent survey from The Associated Press-NORC Center for Public Affairs Research found that 48% of adults think Trump should be charged with a crime for his role in the riots, while 31% say he shouldn’t, and 20% say they don’t have enough information to make an opinion quite yet.
