The Two-Pronged Test That Could Put Trump in Prison

“The problem is that we have statutes on the books based on what Congress can envision,” Barbara McQuade says. “And I don’t think Congress ever imagined that a President would try to do what Trump is accused of doing.” 

As the January 6th hearings unfold, a former U.S. Attorney discusses the possibility of criminally prosecuting the former President.

Isaac Chotiner in The New Yorker: The House select committee investigating the attack on the Capitol on January 6, 2021, has begun to hold public hearings, laying out, in explicit detail, how Donald Trump was repeatedly told by key advisers that he fairly lost the 2020 election, among other revelations. Nevertheless, Trump continued to encourage protests against the election’s certification, and expressed sympathy for the view that Vice-President Mike Pence deserved to be killed. The biggest question hanging over the hearings is whether they will contribute to a criminal case against the former President. The Justice Department is conducting a wide-ranging investigation into January 6th, but this is not the first time that Trump has appeared to be in the crosshairs of prosecutors.

If the former President is charged, what exactly would the charges be, and how tough would the case be to prosecute? To talk about this, I recently spoke by phone with Barbara McQuade, a professor at the University of Michigan Law School and a former United States Attorney for the Eastern District of Michigan. (She resigned from her position, which she’d held since 2010, in the early days of the Trump Administration.) During our conversation, which has been edited for length and clarity, we discussed why Trump’s mind-set is so important to any criminal case, the arguments he might make to defend himself, and whether the Justice Department is too concerned about the optics of charging a former President.

If a case is made against Trump, what precisely would it be for?

It would require a full investigation to see if you can mount sufficient evidence. And the Justice Department will be the first to tell you that it investigates crimes and not people. But, with that in mind, it seems to me that some potential crimes here are: first, conspiracy to defraud the United States; and, second, conspiracy to obstruct an official proceeding. The first one is more broad. The second one is more specific.

What does that mean, “conspiracy to defraud the United States”?

The statutory citation is Title 18 of the United States Code, Section 371. It is sometimes referred to as the Klein Conspiracy, after a case named United States v. Klein. It is frequently used in cases of tax violations, but what it means is that someone with a fraudulent intent did something to obstruct or impede the official functioning of government. And so, in this instance, it would be something like, Trump and others conspired to defraud the American people and interfere with the proper transfer of Presidential power. And it could be as simple as getting Mike Pence to refuse to certify the vote when he had a duty to do so. Sometimes people think about the big picture, that you have to tie Trump to the physical attack on the Capitol. And that could do it, because that was one way that the certification was obstructed. But it could also simply be his efforts to pressure Mike Pence to refuse to certify the vote. And that would be an obstruction of an official proceeding.

Liz Cheney said there are seven different schemes that they’re going to try to prove in the next few weeks. It could be that they’ve got seven different ways that they’re going to try to show conspiracy to defraud the United States, but any one of them is enough to obtain a conviction. Alternate slates of electors, or trying to persuade Georgia to change the outcome in that one state. Any of those things could suffice for conspiracy to defraud the United States.

And what about a conspiracy to obstruct an official proceeding?

That would relate specifically to the certification effort on January 6th. Again, it could be proved by a number of different methods. It could be proved by inciting the mob. That would be one way, but I think that’s much harder than you need. It could be proved, again, just by pressuring Mike Pence to refuse to certify. That could be an obstruction of an official proceeding of Congress. And, by interfering with that in a way that is fraudulent, that could be a violation of that obstruction statute.

There are two connected but separate things. The first is Trump trying to obstruct the certification of Biden as the next President. And the second is the law-breaking that occurred from the mob on January 6th. The mob may have been a tool to put the first scheme into effect, but there were also laws broken by the mob itself, such as invading the Capitol and assaulting police officers. Is your sense that the crimes we would likely see regarding Trump would be more related to the certification than the actual physical destruction of property and assault of police?

Yes. I suppose the committee has dangled the latter a little bit. I still haven’t seen any evidence of it, but if they could prove that someone close to Trump met with the Oath Keepers and the Proud Boys on January 5th and said, “Tomorrow, I want you to breach that Capital and whatever happens, come hell or high water. You must make sure that their proceeding does not continue,” then you could link up the two as a conspiracy. It would still be to obstruct an official proceeding, not for the actual violence, unless you had a specific agreement: “I want you to beat up cops.” You’d have to show an agreement between those specific groups. And I don’t think we’ve seen that yet. We may never get there, but I don’t think we need to, because you can just show that he was trying to get alternate slates of electors, or that he was pressuring Pence to refuse to certify, or that he was pressuring Georgia’s secretary of state, Brad Raffensperger, to find him eleven thousand votes.

Is there any precedent for going after politicians or officeholders for these types of acts?

I’m not familiar with any. The one thing that comes closest, but is probably not even the same, is a guy who was a county auditor in Cleveland who paid his opponent to run against him and deliberately lose. That’s corruption in an election, but a little different from what we’re talking about here.

That makes me wonder whether it is actually hard to prove that these laws were broken.

Well, I don’t know that we have anybody who’s ever tried who has this much power, the way a President does. Maybe it has been attempted at lower levels and I’m just not aware of it. I think part of it is that this is an incredibly audacious scheme, if it is proven. And it requires someone who can marshal the resources and control the levers of government to be able to pull it off the way Trump may have.

But a prosecution would be for violating these broader laws rather than laws related to the functioning of elections specifically?

Yes. The problem is that we get statutes on the books based on what Congress can envision. And I don’t think Congress ever imagined that a President would try to do what Trump is accused of doing. And so we don’t have a specific statute on the books that says, “You can’t pressure the Vice-President to abuse his authority to throw out the electors and substitute false ones,” because I think no one ever imagined that would happen. So, instead, you have things like obstructing an official proceeding or defrauding the United States out of the proper functioning of government. Those would be the closest things that would fit here. And they get used for lots of different things, but nothing like this that I’ve ever heard of.

More here.