What to expect from the DOJ investigation of Donald Trump?

In the history of our nation, no attorney general has prosecuted a former president in federal court for crimes committed while in office.

The January 6 congressional hearing credibly presents a damning narrative that then-President Donald Trump has committed a major crime of obstructing justice, interfering with official January 6 congressional proceedings, and defrauding citizens of the United States of America for a fair election. was the driving force behind the plot. Result.

While there appears to be little in the trial that would preclude a successful criminal prosecution of the former president, neither trial guarantees a successful prosecution.

Unlike a congressional hearing, in a criminal prosecution, the former president will challenge all the evidence that prosecutors expect to present before a jury in a criminal trial. This process will test the credibility, bias and recall of witnesses. The federal rules of evidence may exclude certain key evidence or testimony disclosed at the January 6 hearing. In every US court, the defendant is presumed innocent until proven guilty beyond a reasonable doubt and the burden of proof is on the prosecution. No matter what we might think of Trump’s actions on January 6, the picture in front of 12 open-minded jurors may look quite different once the defense presents its case.

Some have criticized the speed of the Justice Department’s investigation, while others say the public record already clearly supports the former president’s indictment and possible conviction. As of the time, it appears that the investigation is proceeding in a deliberate, careful and systematic manner. Out of the objectivity of potential targets, the work of any federal investigation is confidential. Confidentiality is required in grand jury proceedings. The longer the investigation, the longer it will take. January 6: Only after collecting and analyzing all the evidence, including the work of the committee, will the attorney general decide on a charge, whether it takes six weeks or six months.

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DOJ guidelines about timing of prosecutions approaching elections are just that — guidelines. To be sure, these guidelines are important for maintaining a degree of uniformity among federal prosecutions and protecting the department’s reputation against allegations of bias and bias. However, in the end, the Attorney General has broad discretion, which is in the interest of justice.

Whether Congress makes a criminal referral of former President Trump to the Justice Department will matter little in Garland’s final decision. For example, Congress may decide that the facts support a referral, yet refuse to do so because of concerns it will politicize their work. No one should expect the Attorney General to blindly follow the decisions or recommendations of the Committee or be constrained by regulations intended to be decided by line prosecutors in routine cases across the country.

Ultimately, midterm elections will not determine the attorney general’s timing or decision. Given the widely reported view that the January 6 committee might feel a sense of urgency to complete its task, Republicans would retake control of the House and then dissolve the committee or undermine its work. Will give Whatever happens this November, the department will continue its investigation and Garland will make a decision based on the evidence.

As a strength of the government’s case, only Garland and his highly experienced team of prosecutors can best assess what crimes they can prove, if any, have been committed by the former president and others. They have tools that do not compel private individuals and congressional committees to collect evidence and testify.

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A primary reason for punishing criminal acts is to discourage future behavior. The potential offenses here are serious in nature and require accountability. This is particularly relevant here, given the growing signs that former President Trump intends to run for office again. Even if the prosecution is unsuccessful in the future, the investigation and trial is likely to provide a strong deterrent in the future.

From abortion and gun rights to growing threats from China and the war in Ukraine, there are other serious issues facing our country today. The leaders of our government must address these internal and external challenges. A trial of former President Trump would dominate the news and attract public attention and our government leaders for months. President Gerald Ford pardoned former President Richard Nixon for acts related to the Watergate break-in, as Ford believed it was time for the country to move on and recover. He thought it best to use the sovereign’s power to pardon Nixon’s crimes. President Biden has the power to do so if he wishes, but granting a pardon is neither within the attorney general’s power nor within his discretion. The Attorney General’s job is to prosecute wrongdoing, no matter how popular or unpopular it may be.

Merrick Garland has a reputation for honesty and courage. I hope he will be as fair in his charge decision regarding former President Trump as he would with any other potential defendant. However, I doubt that here he will proceed with extra caution. If the government prosecutes a former president, the government must be particularly confident of success.

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Attorney General Garland will decide to charge at a time of his choice. He will not take this decision in a vacuum and will not rely solely on his own experiences. He will consult and listen to the views and recommendations of his senior team. He will weigh all the evidence collected by both the January 6 committee and Justice Department investigators.

Whatever the decision, at some point Garland must explain how his decision advances the rule of law, and defends it for the American people, Congress, and Justice Department personnel. He will have to explain his decision to history.

Alberto Gonzales was the 80th Attorney General of the United States and counsel for the President in the George W. Bush administration. He is now the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.

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