[ The January 6 committee, Justice Department, and activists are
diverging.]
[[link removed]]

AS COUP EVIDENCE MOUNTS, PROGRESSIVES EYE GEORGIA TO JAIL TRUMP, NOT
FEDS  
[[link removed]]


 

Steven Rosenfeld
June 15, 2022
Independent Media Institute [[link removed]]

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_ The January 6 committee, Justice Department, and activists are
diverging. _

Rep. Bennie Thompson, D-Miss., and Rep. Liz Cheney, R-Wy. lead the
House select committee investigating the January 6 attack on the
Capitol., Drew Angerer/Getty Images

 

As the House Select Committee to Investigate the January 6 Attack on
the U.S. Capitol [[link removed]] provides new and
mounting evidence of Donald Trump’s efforts to overturn a
presidential election he lost, so, too, is the expectation rising that
the Department of Justice will have no choice but to prosecute Trump
and co-conspirators. But in center-left advocacy circles, there is
rising talk that the best odds to prosecute and jail Trump may lie in
state court in Georgia, not federal court in Washington, D.C.

“As I said last night on CNN
[[link removed]],
if there is an audience of one [person to persuade], it ain’t [U.S.
Attorney General] Merrick Garland. It’s [Fulton County, Georgia’s
District Attorney] Fani Willis,” said Norman L. Eisen
[[link removed]], a former U.S.
ambassador now with the Brookings Institution, speaking during
an activist briefing
[[link removed]] call one day
after the first January 6 House committee hearing.

Eisen and like-minded colleagues were working in public and private to
push prosecutions of Trump. Their efforts have followed an arc, he
said, from showing “likely criminality that a judge found,” to
“substantial criminality” as a Brookings Institution report
[[link removed]] detailed,
to an evolving “Criminal Evidence Tracker
[[link removed]].”
He said, “We’re going to get to beyond a reasonable doubt.”

And Eisen predicted that Willis, the district attorney in Fulton
County, Georgia—where Georgia Secretary of State Brad Raffensperger
was bullied by Trump in a phone call
[[link removed]] to
“find” enough votes to overturn Joe Biden’s victory, and where
GOP officials forged
[[link removed]] an
Electoral College certificate declaring that Trump won—would likely
file charges against Trump and others this year, which could be before
Garland acted. Willis convened
[[link removed]] a
special grand jury in May.

“Whether or not he goes to jail depends on whether she and all of us
help frame that case that five justices of the [U.S.] Supreme Court
say, as they did with _Trump v. Thompson_
[[link removed]],
‘I don’t want to touch it,’” Eisen said. “It will have to
survive federal scrutiny. It will be removed [from state to federal
court], and we need to get it kicked back to state court in Georgia.
That’s the whole shooting match.”

Willis, like her Justice Department counterparts, has been circumspect
in her comments, saying
[[link removed]] her
office has a “duty to investigate” and citing past experience in
criminal racketeering cases. The Justice Department has also been
investigating the January 6 insurrection, has charged hundreds of
rioters, and, as Garland said, is scrutinizing the committee’s work.

While it is premature to speculate whether and where Trump and his
allies may face criminal charges for their roles in a failed
unconstitutional coup, the evidence presented so far—by the
committee and by lawyers such as Eisen’s team—is also leading to
public statements and new explanations about the committee’s
objectives and what separately might unfold in court.

BUILDING A CASE

On Tuesday, June 14, Rep. Liz Cheney, R-WY, the committee co-chair,
posted a Twitter video
[[link removed]] that
reminded Americans what evidence it had most recently presented.

“Yesterday, the Select Committee’s hearing showed all Americans
that President Trump’s claims of a stolen 2020 election were, to use
former Attorney General [William] Barr’s words, ‘complete
nonsense,’” she said, referring to its June 13 hearing
[[link removed]].
“We heard this from Donald Trump’s own campaign experts, his own
campaign lawyers, his own campaign manager, his attorney general, and
others Donald Trump appointed to leadership positions in the U.S.
Department of Justice. President Trump’s advisers knew what he was
saying was false, and they told him so directly and repeatedly.”

Cheney then previewed the next hearing’s topic: how Trump and his
loyalists pressured the vice president “to refuse to count lawful
Electoral [College] votes. As a federal judge has indicated, this
likely violated two federal criminal statutes. President Trump had no
factual basis for what he was doing, and he had been told it was
illegal. Despite this, President Trump plotted with a lawyer named
John Eastman, and others, to overturn the outcome of the election on
January 6.”

Cheney’s video had more than one purpose. The House investigation
itself is not a prosecution, but a wide-ranging inquiry intended to
tell the American public what happened. However, the panel is also
compiling and presenting an evidence trail centered around the hardest
part of any prosecution—proving that the likely accused intended to
break the law.

“The key, in terms of criminal cases and the viability of criminal
cases, is the evidence that’s available to prove that Donald Trump
and others acted with the requisite criminal intent,” said Kristy
Parker [[link removed]], a
former federal prosecutor, during a June 14 briefing
[[link removed]] by Protect
Democracy [[link removed]], a nonprofit dedicated to
representative government. “And for the kind of charges we’re
talking about here, the department would essentially be required to
prove that Donald Trump and his associates knew what they were doing
was wrong.”

Parker said that proving intent doesn’t rely on knowing what a
person is privately thinking.

“Intent is customarily proven by surrounding circumstances, and
we’ve seen the committee doing just that,” she explained.
“It’s important to understand as a legal matter that prosecutors
won’t be in a position of having to prove that Trump believed he
lost, only that he knew he couldn’t do certain things to stay in
power, like coerce the Georgia secretary of state to find him one more
vote than he needs, or tell the DOJ to just announce fraud, and let
him do the rest, or pressure Vice President [Mike] Pence to refuse to
accept the results, or weaponize the mob to disrupt the January 6
proceeding. And there’s much more to come from the committee on all
of those points.”

Cheney’s video tweet promised more revelations to come. But
progressives and center-left public policy organizations are trying to
get ahead of that breaking news by ramping up the pressure on federal
and state prosecutors to act. Eisen and his team of fellow lawyers
have compiled an ongoing document, “The January 6th Hearings: A
Criminal Evidence Tracker
[[link removed]],”
which details the “facts and evidence” known thus far, including
new revelations from each hearing.

“Although we are just two hearings in, the evidence of possible
criminal conduct is steadily mounting, which we document in our three
trackers looking at possible federal charges under criminal conspiracy
to defraud the United States (18 U.S.C. §371); obstruction of an
official proceeding (18 U.S.C §1512); and criminal solicitation to
commit election fraud (GA Code § 21-2-604),” its introduction
[[link removed]] said
on Just Security [[link removed]], a public
policy forum. “The hearings have often resembled an argument to a
criminal jury. That is not because of the heated rhetoric being used;
the Committee has been quite restrained. Instead, it is because of the
substance: the power, quantity, and import of the evidence.”

The tracker is co-authored by Noah Bookbinder
[[link removed]] (Citizens for
Responsibility and Ethics in Washington, or CREW), Norman L. Eisen
[[link removed]] (Brookings
Institution), Fred Wertheimer
[[link removed]] (Democracy
21), Jason Powell
[[link removed]] (CREW), Debra
Perlin [[link removed]] (CREW),
and Colby Galliher
[[link removed]] (Brookings).

In contrast, at the Protect Democracy briefing
[[link removed]],
which featured three former Justice Department officials, one of the
key takeaways was to give the department enough time to be methodical
and to build its cases from the bottom up—starting with hundreds of
January 6 rioters and working toward the instigators and organizers,
including Trump.

“If, in fact, the evidence is there, as it looks like it may well
be, to show that Donald Trump knew that he’d lost the election and
knew in connection with these things that he was attempting to do that
they were improper, then the culpability is right up near the top,”
said Donald Ayer, former deputy attorney general. “Now, at the end
of the day, we all need to be patient and acknowledge that the
department is the one that has to make this call. Ultimately, it’s
the attorney general [Merrick Garland]. And I think we listen, and we
wait.”

Notably, the criminal evidence tracker co-authored by Eisen and his
colleagues includes a section compiling facts, evidence, and criminal
thresholds to convict Trump and co-conspirators in Georgia—not just
in federal court in Washington. Eisen further told the activists that
Georgia has a bipartisan state pardon board, meaning that a conviction
could not be readily overturned by the state’s Republicans (unless
its legislature reconstituted
[[link removed]] the
board).

All of these developments, from Cheney’s video previewing the
committee’s next hearing to the efforts of Eisen and others to frame
the media and legal narratives, point toward Trump and his
collaborators facing a day in court.

Even the former federal prosecutors, who, in contrast to Eisen’s
team, urged patience, said that Trump knew what he was doing—which
contrasts with former Attorney General William Barr telling
[[link removed]] the
committee in a videotaped interview that Trump was “detached from
reality.”

“That phrase that Attorney General Barr used strikes me as somewhat
inapt,” said Ayer. “For example, that phone call with
Raffensperger in Georgia, that Trump executed at some length, that was
not the conversation of a person who was detached from reality. That
was the conversation of a bully. And he had other similar
conversations, [also during which he seemed like someone] who
basically wanted things to go his way. And he was going to push and
shove and lean on people in order to make that happen. And he did it
multiple times, which… gives evidence of a high level of intent.”

_This article was produced by __Voting Booth_
[[link removed]]_, a __project_
[[link removed]]_ of the
Independent Media Institute._

_Steven Rosenfeld is the editor and chief correspondent of Voting
Booth [[link removed]], a project
[[link removed]] of the
Independent Media Institute. He has reported for National Public
Radio, Marketplace, and Christian Science Monitor Radio, as well as a
wide range of progressive publications including Salon, AlterNet, the
American Prospect, and many others._

* Donald Trump
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* prosecution possibility
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* Georgia
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