Will Trump or his allies face charges over Jan. 6? Legal experts explain hurdles DOJ faces

The House investigation of the Capitol attack on Jan. 6, 2021, revealed shocking evidence, but the Justice Department decides whether to pursue charges against former President Donald Trump or aides.

Bart Jansen
  • The Jan. 6 hearings have been shocking and revelatory, but that doesn't assure charges.
  • Experts say inciting a riot is a possible charge, but First Amendment could protect Trump.
  • AG Garland says nothing blocks investigation, but experts say weighing charges is complicated.

WASHINGTON – House hearings about what led to the Capitol attack and what happened on Jan. 6, 2021, provided a series of stunning revelations, but the Justice Department must still decide whether to charge former President Donald Trump or his top aides with crimes related to the attack.

A federal judge suggested Trump and one of his personal lawyers “more likely than not” broke the law with a scheme to overturn the 2020 election. Lawmakers investigating the attack have called for charges against Trump.

But legal experts say there are few clues of an aggressive federal investigation of Trump – and there are hurdles to pursuing charges for even the seemingly most obvious cases.

Barbara McQuade, a former U.S. attorney who is now a law professor at the University of Michigan, said the committee heard “overwhelming evidence” that Trump was notified repeatedly he lost the election. The evidence also said he pressured Vice President Mike Pence and state officials to overturn the results, knew the mob was armed when he urged supporters to go to the Capitol and failed to take action for hours during the attack, she said.

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McQuade said a "strong case" is possible for conspiracy to defraud the United States and conspiracy to obstruct Congress from counting Electoral College votes. But she said the presentation has been one-sided and prosecutors would have to anticipate how Trump and his aides would fight the accusations.

“Just because DOJ can file charges does not mean it should file charges,” McQuade said. It should weigh factors such as deterring future crimes, which she called “particularly strong in this case."

“Here, there are significant drawbacks to criminal charges, such as creating the appearance of a political motivation by DOJ, which could lead to civil unrest or even civil war," she said.

As the Jan. 6 committee completed eight hearings in June and July with explosive revelations, the panel reached an agreement to provide evidence the Justice Department requested. But after charging more than 850 people who were mostly on Capitol grounds for the riot, there have been few public clues such as search warrants and subpoenas issued to organizers behind the event or administration officials.

“I’ve become increasingly skeptical that the Justice Department has mounted an aggressive investigation into Trump’s criminal liability,” said Renato Mariotti, a former federal prosecutor now at Thompson Coburn LLP. “If they did make a decision, it would be in their interest to make that decision as soon as possible. But there is no public indication they are close to making that decision.”

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Inciting Jan. 6 riot could be strongest charge, legal experts say

Former President Donald Trump points to the crowd as he arrives to speak at a rally Friday in Prescott, Arizona.

One of the best prospects for prosecution, legal experts say, would be a charge of inciting a riot or inciting an insurrection because the facts aren’t in dispute, just the law.

Trump invited protesters to Washington in a tweet Dec. 19, 2020, with the phrase “will be wild!” During a speech Jan. 6, 2021, near the White House, Trump argued the election was stolen and he urged the crowd to fight for him by marching on the Capitol.

“We fight like hell. And if you don't fight like hell, you're not going to have a country anymore,” Trump said.

But he also said: "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."

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One revelation at the hearings was from Cassidy Hutchinson, a former aide to Trump and White House chief of staff Mark Meadows, who said Trump was warned before his speech Jan. 6 that people nearby were carrying rifles and pistols.

Without any dispute that Trump gave a fiery speech and members of his audience went to the Capitol where they violently attacked people, Mariotti said, the legal question is whether the speech was protected under the First Amendment by a president speaking about matters of public concern.

“I think the Justice Department would be somewhere in the ballpark of being able to charge the former president based on what is known publicly,” Mariotti added.

Trump's legal advisers could cloud conspiracy charges

Another potential charge is conspiracy to obstruct Congress. Trump pressured Pence to single-handedly reject electors from states Joe Biden won to flip the election.

But Trump could say he was listening to his personal lawyers, Rudy Giuliani, a former U.S. attorney and New York mayor; John Eastman, a former clerk to Supreme Court Justice Clarence Thomas and former dean of Chapman University law school; and Jeffrey Clark, a former assistant attorney general.

Trump considered making Clark attorney general after he drafted an unsent letter to officials in contested states urging them to send alternate electors to Congress. Eastman developed the strategy unmoored from legal precedent for Pence to reject official electors.

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“It is difficult to assess the likelihood of criminal charges,” McQuade said. “Based on what we have seen through the committee, it seems to me that a strong case can be made to prove conspiracy to defraud the United States and conspiracy to obstruct an official proceeding.”

Federal authorities searched Clark’s home and seized Eastman’s cellphone. But if they were charged, that could help Trump, because prosecutors would need to prove Trump knew what he was doing was wrong.

“The presence of those lawyers could actually complicate a case against Trump because those lawyers of course were giving Trump advice,” Mariotti said. “When you explain it that way, it doesn’t sound nearly as sinister.”

Trump issued a statement Thursday repeating his baseless claim of election fraud and insisting Pence could have rejected state electors. Pence told Trump there was nothing he could do – “it was etched in stone,” Trump said. But Trump questioned why lawmakers are working to update the Electoral Vote Act if there was nothing the vice president could do.

“This was a major event, because everybody ganged up and said that Mike had no choice, he could not send the slates back to the States (which is all I suggested he do) for possible retabulation and correction based on largescale Voter Fraud and Irregularities,” the statement said.

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Trump's call to Georgia a 'word salad,' expert says

Trump’s call Jan. 2, 2021, to Georgia Secretary of State Brad Raffensperger is another possible target for charges. Trump asked him to "find" votes he needed to flip the state from Biden.

"So look, all I want to do is this: I just want to find 11,780 votes, which is one more than we have,” Trump told Raffensperger, according to a recording of the call.

Trump also said that officials weren’t doing enough to investigate fraud and that the election was stolen, which could be used in his defense. Trump described the call as “perfect” and campaigned to defeat Raffensperger.

“Based solely on what we know publicly, I think the call is more of a word salad than you might think at first glance,” Mariotti said. “It’s not clear to me that that call on its own would be sufficient to establish a case.”

Local authorities could act faster than federal investigators. Fani Willis, the district attorney in Fulton County, Georgia, convened a grand jury to investigate the call.

“I would predict Fulton County is much more likely to act than the Justice Department,” Mariotti said. “However, I don’t necessarily think that means they have the strongest charges.”

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Jan. 6 committee warns against witness tampering

Witness tampering is another potential charge.

Trump called an unnamed witness, later identified as a White House support staffer, after Hutchinson’s blistering testimony, according to the committee’s vice chair, Rep. Liz Cheney, R-Wyo.

The staffer didn’t take the call and told a lawyer, who notified the committee. The panel reported the attempted contact to the Justice Department, which declined comment.

At a previous hearing, Cheney warned that unnamed people contacted witnesses about their testimony, referenced being “loyal” and said Trump “does read transcripts.”

“Let me say one more time, we will take any attempt to influence a witness’ testimony very seriously,” Cheney said at a hearing July 12.

Patrick Cotter, a former federal prosecutor who pursued organized crime figures such as John Gotti, said someone getting a call from Trump could feel uncomfortable. But he said that without the call going through or having a message relayed, it “does not come close to being substantive evidence of an effort to influence a potential witness.”

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Cassidy Hutchinson, aide to former White House chief of staff Mark Meadows, after testifying before the House Jan. 6 committee on June 28.

Lawmakers, judge call Trump's actions 'illegal'

As the Justice Department mulls possible charges, lawmakers and good-government advocacy groups called for criminal charges against Trump and his advisers.

"Everything I hear from the January 6 committee hearings shows all the puzzle pieces put together. No more gaps," Rep. Pramila Jayapal, D-Wash., chair of the Progressive Caucus, said in a tweet. "All of it points to the urgent need for DOJ to prosecute Donald Trump. If he is not held accountable, there will be enormous consequences to our democracy."

The investigative committee filed a court document March 3 saying there was a good-faith basis to conclude Trump and members of his campaign "engaged in a criminal conspiracy to defraud the United States.”

“What the president wanted the vice president to do was not just wrong, it was illegal and unconstitutional,” Cheney said at a June 16 hearing.

U.S. District Judge David Carter ruled in March, in a civil case providing Eastman's emails to the committee, that Trump and Eastman “more likely than not” acted unlawfully in the Pence scheme by trying to defraud the United States and obstruct Congress. But Trump didn’t participate in the case, and Carter’s ruling fell short of the “beyond a reasonable doubt” threshold required for a criminal conviction.

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“The illegality of the plan was obvious,” Carter wrote. “Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”

Legal experts said a key element required in the charges Carter cited would be proving Trump knew he was acting unlawfully. The committee played never-before-seen outtakes Thursday from a speech Trump delivered Jan. 7, 2021, that showed him refusing to say the election was over.

"I don't want to say the election is over," Trump said. "I just want to say Congress has certified the results without saying the election is over, OK?"

Norm Eisen, a lawyer who staffed the first House impeachment of Trump, said the committee revealed Trump's culpability by showing he knew he lost the election and still tried to overturn it.

“I think that Trump and his co-conspirators face substantial risk, first state charges and then federal ones," Eisen said, referring to the Georgia investigation.

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Garland says nothing prevents investigating Trump

Attorney General Merrick Garland said on the anniversary of the attack that he would pursue the investigation consistent with where the facts and the law lead. But as Trump and congressional Republicans blast the congressional inquiry as partisan, the Justice Department must weigh whether prosecutions – if pursued – would appear political.

Garland caused a stir with a May 25 memo reminding prosecutors to remain neutral and impartial during this election year. Garland referred to a memo Feb. 5, 2020, from then-Attorney General Bill Barr that said no investigation may be opened of a declared candidate for president or senior advisers.

Garland said Wednesday that nothing prevented him from investigating Trump.

“No person is above the law in this country,” Garland said. “I can’t say it any more clearly than that. There is nothing in the principles of prosecution and any other factors which prevent us from investigating anyone – anyone – who is criminally responsible for an attempt to undo a democratic election.”

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Rep. Bennie Thompson, D-Miss., left, opens a public hearing before the House committee to investigate the Jan. 6, 2021 attack on the U.S. Capitol on July 12, 2022 in Washington, D.C. At left is committee vice-chair Rep. Liz Cheney, R-Wyo.

Legal experts say attorneys general of both parties have issued similar memos for years to avoid interfering in politics.

"The boss should not get surprised by media reports that a candidate for president is under investigation," said McQuade, who called the memo "not concerning at all."

A previous flashpoint came in 2016, when then-FBI Director James Comey announced he was reopening an investigation into Democratic nominee Hillary Clinton's email days before the election, which she argued could have tipped the results.

Doug Jones, a former U.S. attorney and Democratic U.S. senator, said getting approval is standard practice for high-level investigations such as those concerning Cabinet officials or governors.

“That is standard practice, folks, if you’re talking about a high government official,” Jones said in video tweeted in reaction to Garland’s memo. “I don’t think this is going to stop the Department of Justice from conducting any investigations that are currently ongoing that are the result of what happened before, during and after what happened Jan. 6.”

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Trump not charged in Mueller probe

The Justice Department already declined to charge Trump based on revelations during special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Mueller's report identified several episodes of potential obstruction of justice, including Trump firing Comey, ordering then-White House counsel Don McGahn to fire Mueller and urging associates to pressure his attorney general at the time, Jeff Sessions, to halt Mueller’s inquiry.

But Mueller said he made no decision on whether to charge Trump because of a department policy that discourages charging a sitting president. The department hasn’t charged Trump since he left office.

A video of former Trump chief strategist Steven Bannon talking about the Capitol riot on Jan. 6, 2021, is played at the House hearing on July 12, 2022.

Different outcomes: DOJ charged Bannon, Navarro with contempt, but not Meadows, Scavino

The Justice Department illustrated its discretion in charging former Trump aides based on recommendations from the House of Representatives. The department charged two former aides with contempt for defying the committee's subpoenas and declined to charge two others.

The department charged Steve Bannon, a Trump political strategist, and former Trump trade adviser Peter Navarro with contempt. Bannon was convicted Friday, and Navarro's trial is scheduled for November.

But Matthew Graves, the U.S. attorney for the District of Columbia, announced June 3 that he wouldn’t charge Meadows or deputy chief of staff Dan Scavino with contempt for defying their subpoenas.

Both men claimed executive privilege in refusing to testify – as did Bannon and Navarro – but Graves didn’t explain why charges weren’t pursued.

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