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Merrick Garland’s impossible choice: Whether or not to prosecute Donald Trump

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The Jan. 6 committee has started to lay out a made-for-TV case against former president Donald Trump, airing video clips and testimony from some of Trump’s closest confidants about his actions during the riots and efforts to change the 2020 election results.

But the decision on whether to bring actual criminal charges against Trump won’t be made by the committee — it will be up to their most important audience member, Attorney General Merrick Garland.

Hear more from Maggie Severns about this story:

“It would be unprecedented to have the [Justice Department] from one presidency indicting the defeated opponent and potential repeat opponent of the sitting president,” said former federal prosecutor Samuel Buell. “How do you even conceive of the right way to make that decision as a lawyer?”

Garland will have to weigh if he believes Trump broke the law and if there is a winnable case against him. But he will also need to weigh if prosecuting Trump is the right thing to do.

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If the country would be better-served by not prosecuting a former president, Garland has the discretion to not bring the case and pursue a path that is less divisive among the public. If he does press charges, a trial would likely extend two to three years, legal experts say, putting the issue front and center during the 2024 election.

The committee has said it sees evidence that Trump and his associates were part of a “criminal conspiracy.”

“I’d like to see the Justice Department investigate any credible allegation of criminal activity, on the part of Donald Trump or anyone else,” Rep. Adam Schiff (D-Calif.) said recently on ABC’s “This Week.” “The rule of law needs to apply equally to everyone.”

But historically, the federal government has avoided bringing such charges against a president. Those in key positions ultimately landed on the side of bringing the country together and moving on.

The closest modern historical examples we have are Watergate in the 1970s and Whitewater in the 1990s.

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After Richard Nixon resigned from presidential office following the Watergate scandal, he received a full pardon from then-President Gerald Ford. More recently, Bill Clinton struck a deal after his presidency with then-Independent Counsel Robert Ray, who decided to not indict Clinton in the Whitewater investigation. Clinton signed an agreement that included an admission he’d given misleading testimony about Monica Lewinsky in court.

In an interview, Ray said he considered the precedent set by Watergate when he was deciding what to do with the Whitewater case — and tried to act in a way that would “account for [Clinton’s] conduct without dragging the country through an indictment and a trial.”

“There were a group of people who advised me, ‘Do your job and let the consequences fall where they may.’ But you have to think about what impact that could have on the country,” Ray said. “Ultimately the attorney general is going to have to make a decision about — even if he does think a crime has been committed — whether it’s appropriate to bring a case, and what that will do.”

As president, Joe Biden has repeatedly said he does not want the Justice Department to be influenced by politics, and Garland similarly pledged to stay free from political influence during his 2020 confirmation. But the Jan. 6 committee hearings have put the issue front and center and begged Garland to consider.

“If there was an inclination to try to avoid this in some fashion, these hearings are making that harder. And it’s hard not to think that that’s not the committee’s intent,” Buell said.

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Proponents of indicting Trump say that, ultimately, the former president must be treated like any other citizen.

“No one is above the law, and if you have evidence — as a federal judge has already found — of likely crimes by Trump and co-conspirators, you can’t ignore that,” said Norm Eisen, a legal scholar and co-counsel for the House Judiciary Committee during Trump’s first impeachment. “I’ve known Merrick Garland for a very long time. I don’t think he’ll treat the president differently from any similarly situated defendant.”

“On the other hand, there is no similarly situated defendant,” Eisen added. “We have never had a prosecution of a former president.”

Federal criminal law is broad, and legal experts have laid out several parts of the law they believe Trump could have violated in the weeks after the 2020 election. Eisen and colleagues have zeroed in on three potential offenses: conspiracy to defraud the U.S., obstruction of an official proceeding and criminal solicitation to commit election fraud.

Others have argued that Trump and his advisers violated the 14th Amendment’s guarantee of “one person, one vote” by trying to interfere in the election. Yet another theory proposes Trump used his government authority for an unlawful purpose, a violation of criminal law.

If the Justice Department indicted Trump for violating one or more of these aspects of criminal law, a key part of a trial would involve showing the former president had “criminal intent,” meaning he intended to commit a crime. Prosecutors would have to show Trump knew he didn’t win the election, but acted to overturn election results regardless. Alternately, they may have to prove that Trump was “willfully blind” and avoided knowing the real outcome.

The Jan. 6 committee has repeatedly focused on evidence that asserts Trump was ignoring such facts, like former attorney general Bill Barr stating he told Trump “he did not agree with the idea of saying the election was stolen,” and former aide Jason Miller’s testimony that the Trump campaign’s lead data person told Trump “he was going to lose.”

The federal government isn’t the only institution that could charge Trump

Trump could also wind up facing charges in other parts of the country. One case that is proceeding quickly is in Fulton County, Georgia, where District Attorney Fani Willis last year opened a criminal investigation into the call from Trump to Georgia Secretary of State Brad Raffensperger in which he urged Raffensperger to “find 11,780 votes” that could be tossed out. A special grand jury was selected in May for the case and two weeks ago, Raffensperger testified about Trump’s efforts to overturn Georgia’s election results.

The timing of upcoming elections would further complicate any action by the Justice Department. Experts do not expect the Justice Department would bring a case against Trump before this year’s midterm elections. A trial would likely begin in 2023 — and, even if it is conducted in an expedited way, it would likely continue into 2024, when Trump is expected to run for a second term as president.

This timing, and the optics of one administration prosecuting a rival during an election, could weigh on Garland’s decision-making as he tries to figure out what is the right thing to do, experts said.

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“Even if he thinks a crime has been committed, ultimately [Garland] is going to have to make a decision about whether it’s appropriate to bring a case. Even if you think you have a winnable case doesn’t mean you have to bring that case. And I think there are all kinds of consequences to brining a case against someone who is essentially a presidential candidate,” said Ray.

“Presidents are different,” Ray said. “It doesn’t mean they’re above the law — but it does mean they’re different.”

Thanks to Alicia Benjamin for copy editing this article.