The January 6 investigation is zeroing in on Donald Trump. indictment will set a legal precedent

A video is played of former US President Donald Trump’s speech on January 6, 2021, as the House Select Committee hearing on the January 6 attack on the US Capitol is scheduled for July 21.Patrick Semansky / The Associated Press

One evening in 1872, Washington police officer William West pulled over Ulysses Grant for speeding in a horse-drawn buggy. Mr Grant, in his first term as US President at the time, had already been warned about his reckless driving. So this time Mr. West caught Mr. Grant at the police station. The President posted a US$20 bond and was released. When he never showed up for the court, he confiscated the money.

This incident is the only known instance of a US president being arrested. But that may soon change: Leaks in US media this week reveal that the Justice Department investigation on the January 6, 2021, attack on the US Capitol zeroes in on Donald Trump and his circle. And, in a televised interview, Attorney-General Merrick Garland left the door open to the charges.

“We will hold anyone criminally responsible for attempting to interfere with a legitimate, legitimate transfer of power from one administration to another,” he told NBC.

If Mr Trump were to be impeached, it would break the new legal ground. The US Constitution does not specify whether a president can be criminally charged, and there has been no definitive court ruling on the subject.

For example, Richard Nixon was pardoned by his successor Gerald Ford before any questions of indictment were closed. And Mr. Grant’s case was concerned with a traffic violation – and a police officer’s decision – rather than a complex investigation into allegations of political abuse of power.

A 1973 Justice Department memorandum concluded that an incumbent president could not be charged because it would incapacitate the government. A later memorandum in 2000, however, argued that charges could be brought after the president had stepped down.

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Julie Novkov, an expert in judicial politics at the State University of New York in Albany, said that if convicted, Mr Trump would almost certainly protest that such a move is unconstitutional, and the Supreme Court would weigh in. .

For example, former presidents may argue that their actions are protected by executive privilege. Or he could have attempted to apply the “double threat” doctrine because he had already been impeached by the House of Representatives, tried and acquitted by the Senate on January 6 over his role.

Pro. Novkov argued that such arguments would not be successful because impeachment is a political process rather than a judicial process, and therefore would not legally count as a past trial. “The weight seems to be falling in favor of allowing the charges to proceed,” she said.

Weighing Mr Garland too, such an unprecedented move would have political consequences. While dozens of state governors, city mayors and members of Congress have been charged throughout American history, there has been a long-standing reluctance to accuse presidents.

“You open that door, any president can be prosecuted once he leaves office. The concern is about political retaliation and the potential caustic effects on national politics,” said the book’s author, Prof. Novkov. Supreme Court and Presidency,

Discussions about the possible charges came after a tumultuous hearing by the Congressional Committee of Inquiry on 6 January. He detailed efforts by Mr Trump and his circle to pressure state legislatures, Justice Department officials and then-Vice President Mike Pence to reverse the results. The 2020 presidential election, won by Joe Biden.

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The Washington Post, the New York Times and CNN, citing unnamed sources, have reported that Justice Department lawyers have in recent days questioned witnesses about Mr. Trump’s role in one aspect of the plan, including fake pro-Trump electorates. It involved trying to change the college slate. Member for Mr. Biden’s voters in several swing states.

Based on the information revealed so far in the committee, possible charges could include obstruction of an official proceeding – for efforts to prevent Congress from tallying Electoral College votes – and sedition conspiracy, a former federal prosecutor, Jacob Frenkel, said. Told. political corruption cases

If there are any indictments, Mr Frenkel said he expects them not to be released until after the midterm congressional election in November. This would allow a case to work its way through the courts before the next presidential election.

The possible example that such a case could be set up is the most important decision an attorney-general has ever faced, said Mr Frenkel, who is now with the firm Dickinson Wright. The department would have an enormous burden of evidence to meet, so it wouldn’t charge until it was confident of winning a conviction.

“The decision about prosecuting the former president will include the question of whether any one person is ‘above the law,'” he wrote in an e-mail. “A conviction will be as powerful as America’s message of being a country that enforces the law because there will be the disastrous notion that will be associated with an acquittal.”

The January 6 committee is expected to issue a report in the autumn and may also make a criminal referral to the Justice Department. Mr Garland, however, is not obliged to wait for such a referral to begin his investigation.

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The department has accused hundreds of rioters as well as leaders of far-right groups of planning the attack on 6 January. Prior to this, however, it has given little indication that anyone from Mr Trump’s immediate circle was under investigation, much to the panic of some members of the committee.

“The Justice Department needs to look into any potential criminality,” Congressman Adam Kizinger told CNN this week. “What have they been doing for the past year and a half?”

Constitutional law professor Jonathan Michael said much of the difficulty in deciding whether to prosecute the president comes from the judiciary’s fear of interfering in politics. This is especially the case because the Attorney-General is appointed by the President. Mr Trump will be certain to use an indictment as further evidence as the “deep position” is out to get him.

But all this is more than needed to stop Mr Trump or other future politicians from trying to sway another election, Prof. Michael, who teaches at the University of California, Los Angeles, argued.

“The situation in which we find ourselves today is unique. We have never had such strong evidence of collusion with anything within the realm of fraud, violence and disruption of the electoral process. We have a man who is completely is unrepentant and continues to spread these lies,” Prof. Michael said. “Absent an intervention now, it is very likely to repeat itself.”

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