Litman: OK, Justice Department, you have plenty of evidence to indict Trump now

Combined with what we already knew, former President Trump’s statement Sunday night leaves no doubt that his intent on Jan. 6 had been to overturn the results of the election he lost:

“Mike Pence did have the right to change the outcome, and they now want to take that right away. Unfortunately, he didn’t exercise that power, he could have overturned the Election!"

You can add that statement to the copious proof of Trump’s criminal intent that the House Jan. 6 committee has already developed regarding his unconstitutional maneuvers that day. But, of course, Trump has never hidden his desire to take and keep power without any regard to the Constitution, the truth or the law. He tweeted that Pence “didn’t have the courage to do what should have been done” even as the insurrectionists stormed the Capitol, forced Congress to suspend the electoral vote count, and drove Pence and lawmakers into hiding for fear of being killed.

Indeed, Trump’s statement and his incendiary speech at a rally in Texas on Saturday show that he is prepared to employ any strategy to seize the White House if he runs in 2024. As Rep. Liz Cheney (R-Wyo.) tweeted on Monday, “He’d do it all again if given the chance.”

Under Justice Department prosecution standards, just the publicly available evidence is sufficient to bring an indictment against Trump for the federal crime of obstructing or impeding an official proceeding — in this case, Congress’ certification of a presidential election.

The guidelines for federal prosecutions specify that prosecutors “should” generally commence prosecution if two circumstances exist: first, the person’s conduct constitutes a federal offense — i.e. the prosecutor has determined that the defendant really is guilty and the prosecution is righteous — and second, the admissible evidence will “probably be sufficient” to convict.

In Trump’s case, there really is no tenable conclusion other than that he urged on the demonstrators to provoke them to obstruct or impede the official congressional proceeding. Add to that the clear proof that he personally attempted to impede the proceeding by pushing Pence to illegally block the certification. In fact, it looks increasingly as if the Jan. 6 insurrection was just a culminating episode in a weeks-long campaign by Trump to overturn the election. We learned Monday that Trump was involved in exploring the idea of seizing voting machines, but the Justice Department or other departments would not go along with the plan.

As for the second factor, the odds are good that a Washington, D.C., jury would return a guilty verdict given the overwhelming evidence.

Since the guidelines appear to be met, should the Justice Department immediately seek an indictment as the guidelines suggest?

Many smart observers think so and believe Atty. Gen. Merrick Garland is being overly diffident and methodical. Garland has indicated that the department will review all possible charges and work its way up a ladder of culpability to the top. Given the outrageousness of Trump’s conduct, and the need to hold him accountable and keep him from a second shot at hijacking the Constitution, responsible voices are urging much quicker action, ideally before the midterm elections. It seems clear that if others were in Garland’s position, the department would pull the trigger right now.

Perhaps there is justification for moving more quickly, with the case against Trump already sufficiently powerful. But there is a welter of other unavoidable considerations, cutting both ways; and many of them are beyond Garland’s judgment alone. The prosecution of a former president is not, and never has been, simply a question of checking the two boxes on the federal prosecution guidelines.

Start here: An unsuccessful prosecution of Trump — including a hung jury — would be a disaster that would guarantee further division in a political system that Trump has already made fragile. That means that the Justice Department needs to build an airtight case, with solid witnesses, where conviction is not just probable but as close to certain as humanly possible. And conviction at trial won’t be an end point; there is certain to be an appeal, including up to the Supreme Court, now packed with three Trump appointees.

Even more weighty, and probably beyond the solitary judgment of an attorney general, are the considerations of whether a prosecution is good for the country. In the Nixon case, President Ford was the right person to decide whether to pardon the former president, and though that decision provoked outrage at the time, it probably did end the “national nightmare,” as Ford explained it.

In the Trump case, the need for national closure, if anything, cuts in the opposite direction — in favor of prosecution. Trump’s brazen lack of remorse — and, indeed, his assurance that he will do it again if given the chance — counsels in favor of charging him, both to hold him accountable and to deter and incapacitate him from a repeat performance.

Prosecutors are supposed to be above politics. But the prosecution of a former president is unavoidably political. That means any final call to greenlight the prosecution will need to involve President Biden — but if the decision is not to prosecute, it won’t be for lack of evidence of criminal conduct.

@harrylitman

This story originally appeared in Los Angeles Times.