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Will the January 6 hearings lead to an indictment of Donald Trump? It could be one man's decision

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As he desperately searched for a way to cling to power after losing the 2020 election, then-US president Donald Trump started piling the pressure on his running mate.

It was Mike Pence’s ceremonial duty as vice-president to certify the results of the election in the US Senate on January 6, 2021.

In a private call that morning, witnessed by Trump’s staff, he berated his deputy, calling him a “wimp'” and threatening they wouldn’t be friends if Pence went through with it.

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In something of a pincer move, he also went public with his disapproval.

Facing an unruly crowd gathered near the White House,  Trump claimed Pence could “stop the steal” and prove his loyalty by ignoring the lawful votes.

That mob then worked its way down the National Mall, breaking into the US Capitol.

Many were calling for Pence’s death, and cries of “hang Mike Pence” rang out as the crowd worked its way past security.

A mob of Donald Trump supporters stormed the US Capitol building as politicians tried to certify the results of the 2020 election. (Reuters: Shannon Stapleton)

They came within 12 metres of the vice-president who took shelter in a bunker below the Capitol.

The allegations being raised before the US House committee investigating the Capitol riot have played out in dramatic fashion. 

With its slickly produced video evidence and star witnesses, the committee is hoping these hearings are as compelling as a punchy political thriller, in order to win over a distracted American people beset by serious economic woes.

But the question now is whether Trump’s behaviour crossed a legal threshold.

Could these hearings actually lead to a former president being charged? 

If the committee maintains its momentum — and its audience — over the coming weeks, it could shift public opinion ahead and, perhaps more importantly, lead to the US Department of Justice (DOJ) pursuing criminal charges.

But only one potential viewer can deliver that knockout blow: the US Attorney-General, Merrick Garland.

And, so far, he has stayed out of the spotlight.

The January 6 committee’s audience of one

The question of how to achieve accountability for the violence of January 6 has hung over President Joe Biden’s administration for more than 15 months.

Whatever the committee finds, it does not have the power to indict Trump — that lies with the DOJ.

Merrick Garland may ultimately have to decide whether prosecuting a former president is in the national interest. (AP: Al Drago)

It has also faced accusations of partisanship from Republicans, which make up only two of the committee’s nine members.

A plan for an independent commission, modelled on the one that investigated the 9/11 terror attacks comprised of five Democratic and five Republican commissioners, was rejected by Senate Republicans.

The committee can, however, pass on the evidence it gathers to federal prosecutors, along with a non-binding criminal referral.

Such a recommendation is not necessary for the DOJ to proceed with an investigation or indictment, which would be a calculated risk.

In general, prosecutors like to be sure they have an airtight case before trying to convince a grand jury of criminal wrongdoing.

“I am watching and I will be watching all the hearings, although I may not be able to watch all of it live,” Garland told reporters after the second hearing.

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It’s a rare public statement from the Attorney-General, who has faced increasing pressure to make his move. 

It followed an earlier admission that the Justice Department was undertaking “one of the largest investigations in our history to hold accountable everyone who was criminally responsible for the January 6 assault on our democracy”.

“We will follow the facts wherever they lead,” he said.

The first hearing delivered damning testimonies from some of Trump’s closest advisers, including his daughter Ivanka and former attorney-general William Barr.

A testifying Capitol police officer gave a harrowing account of clashing with rioters and slipping in blood.

All of that was woven together with previously unseen footage of the riot, at one point overlaid by audio of Trump describing “the love in the air” as the scene unfolded.

The second hearing returned to election night, when an “apparently inebriated” Rudy Giuliani, then the president’s lawyer, told his boss to claim victory despite numerous warnings from credible sources it was rapidly slipping away.

But it was the final of the three, focused squarely on the plot to force former vice-president Mike Pence to block the peaceful transfer of power, which could prove the most consequential.

A plan that almost killed Mike Pence

In the days between election night and January 6, a behind-the-scenes tug of war took place after Trump learned Pence had a crucial constitutional role to play in certifying the election, multiple witnesses said.

Trump allegedly launched a relentless campaign to force his long-time loyal deputy to reject the lawful votes of electors during a joint session of Congress, thereby blocking Joe Biden’s win.

Mike Pence and members of Congress had to be evacuated when a mob of Trump supporters broke into the building. ((AP: Saul Loeb/Pool))

“President Trump was told repeatedly that Mike Pence lacks the constitutional and legal authority to do what Trump was demanding he do,” committee member Liz Cheney said. 

“Vice-president Pence understood that his oath of office was more important than his loyalty to Donald Trump. He did his duty. President Trump unequivocally did not.”

But Trump continued to push, even when his supporters swarmed the building in which Pence stood. 

“[Trump] knew that there was violence and he still tweeted the vice-president didn’t have the courage to do what was necessary,” Democratic congressman Pete Aguilar said.

Aguilar also read a court filing citing a confidential FBI informant who said: “The Proud Boys would have killed Mike Pence if given a chance.”

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The plot to stop the count was allegedly concocted by Trump and one of his then-lawyers, John Eastman, both of whom were repeatedly warned it had no legal basis.

In video testimony, Eric Herschmann, a Trump White House lawyer, confirmed he told Eastman the scheme was unconstitutional.

“I said, ‘You’re going to cause riots in the streets,'” he said.

Will they or won’t they? 

Following the second hearing, Thompson ruled out making criminal referrals to the DOJ.

The January 6 hearings have renewed a debate in legal circles about whether the Justice Department could prosecute Donald Trump.(Reuters: Marco Bello)

“No, that’s not our job,” he told reporters, when quizzed.

“Our job is to look at the facts and circumstances around January 6 — what caused it — and make recommendations after that.”

Just hours later, however, Cheney refused to rule it out.

“We will announce a decision on that at an appropriate time,” she said. 

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Both Thompson and Cheney are former US attorneys, so whatever conclusion they reach is likely to resonate within the department, but several criminal offences could be on the table.

The committee’s dozens of investigators are scrutinising fundraising efforts that leveraged the power of the “Big Lie”, and whether the plot to stop certification of electoral votes amounted to an obstruction of an official proceeding.

It could also pursue charges against witnesses for lying under oath or stonewalling subpoenas in contempt of Congress.

But one possible criminal charge on the cards for Trump and his allies could be “conspiracy to defraud the United States” by interfering with “the proper transfer of presidential power”, one legal expert told the New Yorker.

Who is Merrick Garland?

Despite his bookish demeanour, Garland is no stranger to political drama.

He gained national prominence during one of the most contentious judicial battles in recent history, when he missed out on a plum posting on the US Supreme Court.

Barack Obama tried to nominate Judge Merrick Garland to the Supreme Court in 2016. (Reuters: Jonathan Ernst)

The then-Judge Garland was former president Barack Obama’s pick to fill a vacancy created by the death of conservative Antonin Scalia in 2016.

But despite having more experience on the federal court than any previous nominee, among other impressive credentials, Republican Senate leader Mitch McConnell refused to consider the nomination during an election year.

Eventually, it fell to Trump to fill the seat, along with two others.

In January 2021, Biden tapped Garland for another coveted role: The nation’s chief law-enforcement officer.

The looming midterm elections mean timing is everything

The committee plans to collate its evidence into a comprehensive final report, due to be released in September.

Although its investigation is ongoing, its deadline is tied to the midterm elections in early November, during which the Democrats may well lose their razor-thin majorities in the House and Senate.

Any criminal referral could reinforce Trump’s rhetoric that he is the victim of a political witch-hunt.

In theory, the independent DOJ should be not influenced by elections.

But Garland is likely acutely aware of the political fallout from former FBI director James Comey’s decision to publicise an investigation into then-presidential nominee Hillary Clinton in 2016.

Will anything stick to the former president?

During his 2016 election campaign, Trump famously declared he could shoot somebody on New York’s Fifth Avenue and not lose any votes.

The statement was crass but the message was clear: He knew behaviour that would sink his opponents rarely sticks to him.

Despite being the only US president to be impeached twice in the House, he then shook off impeachment in the Senate.

Notably, prior to these hearings, an increasing number of Americans said Trump bore no responsibility for the events of January 6.

If the committee succeeds in wresting back the narrative, accountability may still prove elusive.

But a DOJ indictment is not the only legal path forward.

Trump is already embroiled in multiple legal battles.

He is being sued by injured police officers, and members of Congress who say he conspired to incite the violence.

He is also the subject of a separate criminal investigation in Georgia.

Perhaps the most pressing of his legal woes, however, is a New York fraud investigation in which he will soon be forced to testify.

Reports suggest Donald Trump could announce a bid for a second term as early as next month. (Reuters: Octavio Jones)

Trump continues to be an influential figure in the Republican Party, still dangling the possibility of running for president in 2024.

But his decades of good fortune may soon turn.

Either way, it might be wise to heed the advice Herschmann said he gave Eastman: “Get a great f***ing criminal defence lawyer.”