Prosecutor: The Two-Prong Test that Could Determine Trump's Legal Risk
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.