![]() ![]() § 1512(c)(2) makes it a crime punishable by up to 20 years in prison for anyone who “corruptly … obstructs, influences, or impedes an official proceeding, or attempts to do so.” This discussion will assume that the joint session of Congress to count the electoral votes presided over by Vice President Mike Pence on Jan. Key legal elements of obstructing an official proceedingġ8 U.S.C. I also discuss the long-standing DOJ standards that point directly toward prosecution in cases such as this one. ![]() After explaining the elements of the charge, I address skepticism that Trump will be charged or convicted, and then explain why a prosecution of Trump is both winnable and necessary despite the known risks. For the sake of simplicity, the following analysis focuses on evidence that proves the substantive offense.). (Note: other charges may be available against Trump, and he could (and likely would) be charged with conspiracy, which requires an agreement to commit a crime, or aiding and abetting, in connection with a substantive obstruction offense. ![]() § 1512(c)(2), the charge DOJ has brought against more than 280 Jan. In the discussion that follows, I explain the basis for this conclusion by focusing on a prosecution of Trump for obstructing an official proceeding in violation of 18 U.S.C. And when it is examined in light of the Department’s Principles of Federal Prosecution, Attorney General Garland should have little choice but to conclude that the implications for democracy and the rule of law of not prosecuting Trump far outweigh the risks of a trial loss, which exist in every complex case. 6 defendants, it looks formidable, not weak. 6 riots and Trump’s inner circle–and in the context of the cases the Department has already prosecuted against other Jan. ![]() When the evidence of Trump’s intentions and actions is viewed through the lens of the cases the Department and the Select Committee are building–including evidence of the ties between the foot soldiers who led the Jan. The former president’s defense counsel would be wise to advise him accordingly. “The chances that Trump will be convicted of any crime are slim to none,” wrote one former prosecutor, and “a failure to convict will only embolden him and his followers.”Īs a former federal civil rights prosecutor who investigated and tried police abuse cases under the onerous “willfulness” standard for many years, I have a more optimistic view of the Justice Department’s (DOJ’s) prospects for successfully prosecuting Trump. Yet Judge Carter’s opinion also met with a wave of warnings from legal journalists and expert commentators that accountability advocates shouldn’t get their hopes up for a Trump prosecution, largely because of the difficult challenge of proving his criminal intent beyond a reasonable doubt to a unanimous jury of twelve, and the too-high risk of an acquittal or hung jury. As one analyst wrote in the New York Times, the ruling “intensified scrutiny on the question of whether the Justice Department can, should or will try to charge him with the same crimes.” But the impact of a matter-of-fact pronouncement on Trump’s potential culpability from a federal judge was unmistakable. Judge Carter’s pronouncement didn’t break any news about the evidence or the potential crimes Trump committed, all of which have been well– documented. 6 to obtain documents from a key witness, found that Trump had “ more likely than not” committed federal crimes in trying to interfere with the electoral count proceedings that day. Carter, reviewing an effort by the House Select Committee investigating Jan. That sentiment was significantly bolstered when federal district court judge David O. A growing consensus has emerged among legal experts, scholars and those otherwise concerned with the health of our democracy, that Trump’s actions to overturn the election warrant criminal accountability. 6, 2021, a national debate has swirled around whether former President Donald Trump will be investigated and prosecuted for any crimes he may have committed through his efforts to remain in office despite his clear election loss. ![]()
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