Note that only 29% say they would vote for someone charged with a felony crime, and only 23% say they would vote for someone convicted of a felony crime.
Donald Trump has been convicted of 34 felonies, and has other felony charges pending. That could pose a big problem for him on Election Day.
The charts above are from the Politico / Ipsos Poll -- done between August 18th and 21st of a nationwide sample of 1,032 adults, with a 3.2 point margin of error.
Is it fair and just — is it a wise use of prosecutorial power — to bring criminal charges against former president Donald Trump for his efforts to overturn the results of the 2020 election?
The answer to this question will become clearer once the indictment is handed up, as now seems inevitable. And, I suspect, the accumulation of evidence, both that already known and facts newly revealed, will point strongly in the direction of yes.
Still, there is a challenging paradox embedded in the idea of charging Trump for his behavior on Jan. 6, 2021, and in the lead-up to that day. His conduct simultaneously involves the most wicked crime — he orchestrated an assault on democracy, literally and metaphorically — and a crime that presents the greatest challenge to fit within the demanding rubric of criminal prosecution.
If Trump shot someone in the middle of Fifth Avenue, most of us would have no problem understanding that to be a criminal offense for which he should be charged and convicted. In the aftermath of the 2020 election, he took aim at our democratic system.
In other words, this is the one we’ve been waiting for, for two-plus years now. It is the real deal — not getting Al Capone for tax evasion but for the true crime of being a gangster. But it also comes with worries — some concocted and inflated for partisan advantage, some serious and deserving of consideration.
Criminal law can be an imperfect tool to punish wrongdoing, especially when it comes to fuzzy, inchoate crimes in the arena of public corruption. Even there, the broad proscriptions of the criminal law — prohibiting conspiracies to defraud the federal government, to obstruct an official proceeding or to deprive voters of their rights — aren’t as self-evidently tailored to the specifics of Trump’s conduct. The precedents aren’t precisely on point, precisely because his behavior is so unprecedented.
There will be space for Trump’s lawyers to argue, for example, that the statute prohibiting obstruction of an official proceeding was meant to apply to tampering with documents, not pressuring Congress not to certify electoral votes.
Should Trump then be allowed to escape responsibility for his most egregious actions, with prosecutors relegated to contenting themselves with Capone-like charges? More fundamentally: Is the criminal justice system the best venue for pursuing justice when it comes to Trump?
Trump’s allies, along with nearly all his rivals for the GOP nomination, have an answer that aligns conveniently with their political interests: No. “He should be held accountable at the ballot box, not at the behest of a federal administrative police state,” said tech executive Vivek Ramaswamy. Former vice president Mike Pence, among the more direct victims of Trump’s behavior, told CNN’s Dana Bash that voters already have a “deep concern” about “unequal treatment of the law” when it comes to Trump and having “one more indictment against the former president will only contribute to that sense among the American people.”
This is not the right way to think about criminal prosecution. The best place to start is with the opening words of the manual that governsfederal prosecutors. “A determination to prosecute represents a policy judgment that the fundamental interests of society require the application of federal criminal law to a particular set of circumstances — recognizing both that serious violations of federal law must be prosecuted, and that prosecution entails profound consequences for the accused, crime victims, and their families whether or not a conviction ultimately results,” the Principles of Federal Prosecution instruct.
The fundamental interests of society. Nothing less is at stake in deciding whether to indict Trump for his efforts to remain in power. If prosecutors can make that case — if they can fit Trump’s conduct within the necessary elements of various criminal statutes — they are duty-bound to do so. Looking away is not an option. There has already been too much of that.
House and Senate Republicans looked away — not just through the course of the Trump presidency, but most fatefully after Trump left office, when they declined to vote for his impeachment and conviction even while knowing, as Senate Minority Leader Mitch McConnell said, “there is no question that President Trump is practically and morally responsible for provoking the events of that day.” Convicting Trump would have served the important function of disabling him from seeking future elective office, but the Senate chose not to take that route. “We have a criminal justice system in this country,” McConnell said then.“We have civil litigation. And former presidents are not immune from being held accountable by either one.”
No, they aren’t. Trump already faces federal charges stemming from his post-presidential refusal to turn over classified documents to the National Archives. Those who lament the anticipated “legal flimsiness”of the forthcoming election-related indictment would do well to recall supposed overreach by the Justice Department in choosing to execute the search at Mar-a-Lago. The eventual facts quelled all but the most partisan critics.
The fact of charges being brought in the documents case does not inform the separate matter of whether charges are appropriate for Trump’s election-related conduct as well. Being prosecuted for an armed robbery in one jurisdiction does not excuse you from being indicted on kidnapping charges in another.
And those who complain of a supposed double standard in going after Trump but turning a blind eye to the conduct of Hunter Biden somehow choose to ignore another, more glaring inequity: that more than 1,000 people, incited by Trump, have been charged in the Jan. 6 insurrection. McConnell put it powerfully: “The people who stormed this building believed they were acting on the wishes and instructions of their president.”
And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories and reckless hyperbole that the defeated president kept shouting into the largest megaphone on planet Earth. Where is the fairness in prosecuting the foot soldiers but not their general?
Bringing charges against Trump for trying to undo the election isn’t piling on. It’s protecting “the fundamental interests of society,” which is another way of saying what prosecutors are supposed to do.
If you want to understand why New York Attorney General Letitia James’s civil lawsuit against Donald Trump and others in his business is so ominous for the former president, turn to Paragraph 5 of her complaint.
The numerous financial misrepresentations by Trump and his companies, the complaint states, “violated a host of state criminal laws, constituting repeated and persistent illegality in violation of Executive Law § 63(12),” referring to New York’s civil fraud statute. “Among other laws, Defendants repeatedly and persistently violated the following: New York Penal Law § 175.10 (Falsifying Business Records); Penal Law § 175.45 (Issuing a False Financial Statement); and Penal Law § 176.05 (Insurance Fraud).”
Trump and his family have repeatedly denied wrongdoing. Trump attorney Alina Habba said in a statement on Wednesday, “Today’s filing is neither focused on the facts nor the law — rather, it is solely focused on advancing the Attorney General’s political agenda.”
In any case, James’s complaint is a shot across the bow of the hapless Manhattan District Attorney Alvin Bragg, who so far seems to have failed to find a basis to pursue criminal charges against the Trump Organization, leading to the resignation of experienced prosecutors Carey Dunne and Mark Pomerantz. (Bragg claimed on Wednesday that the criminal investigation is “ongoing.”)
Norman Eisen, who served as co-counsel for the House Judiciary Committee during Trump’s first impeachment and authored multiple analyses on Trump’s potential civil and criminal exposure, tells me, “Whatever Mr. Bragg’s failures, the Southern District of New York is not known for turning its back on evidence of serious crimes.” Indeed, fact-finding in civil litigation could offer fodder in criminal investigations.
In other words, the same facts set out in James’s complaint could lead to a host of federal charges, including federal bank, tax and wire fraud. And remember, this would be in addition to possible criminal cases concerning Trump’s mishandling of top-secret documents stashed at Mar-a-Lago, his actions leading up to the Jan. 6, 2021, coup attempt and his attempt to pressure Georgia officials to overturn the state’s election results.
As Eisen wrote for Just Security with E. Danya Perry and Joshua Stanton, “At some point, the aggregate effect of all these investigations will reach a tipping point.… The cumulative weight bearing down upon a possible defendant — whether corporate, individual, or both — at some point becomes unsustainable.”
Even before the New York civil case reaches a settlement or verdict, financial firms are now on notice of potential misconduct and may cease doing business with Trump. If, for example, banks begin to exercise their rights to call in loans based on financial covenants they believe were violated, financial turmoil and even bankruptcy become real possibilities. (No financial institution wants to be the last in line to get its money out.)
Consider the myriad ways in which a civil suit of this magnitude might impact Trump:
In sum, Trump’s entire claim to fame as a financial “genius” may soon lie in ruins. His fortune, political power and ability to garner attention might slip away. And if so, he would finally have faced accountability for his actions.
After today’s explosive testimony by Cassidy Hutchinson — who served as chief assistant to Mark Meadows and was literally and figuratively in the middle of Trump’s White House — I don’t see how Attorney General Merrick Garland can avoid prosecuting Trump, as well as Mark Meadows and Rudy Giuliani.
If you didn’t hear or see her testimony, Hutchinson portrayed a plot, in which Trump was directly involved, to stop the counting of electoral ballots on January 6. Meadows, Giuliani, Mike Flynn, and Roger Stone were also directly involved. Trump knew rioters were coming to Washington with weapons, and knew they had weapons on January 6. He knew they were threatening the life of Mike Pence. He knew they were dangerous. He wanted to be on Capitol Hill when they stormed the Capitol. He could have stopped them at any point, but he chose not to.
It was the most chilling depiction yet of a president in charge of an attempted coup. Trump knew exactly what was happening and what he was doing. He knew he was acting in violation of his oath of office and inciting violence in order to stay in office. He repeatedly refused to listen to reason, or to change course.
More than any other hearing to date, the audience for today’s hearing was not just the American public but also the Attorney General. Time and again, Hutchinson gave testimony about serious federal crimes.
Hutchinson testified that (in rough chronological order):
1. As early as December, a plan was emerging that was considered “potentially dangerous for our democracy” and with “dangerous repercussions,” John Ratcliffe, Trump’s director of national intelligence, told Hutchinson at the time.
2. When Attorney General Barr said publicly that the Justice Department hadn’t found evidence of election fraud sufficient to change the outcome of the election, Trump exploded – throwing lunch against the wall of the dining room off the Oval Office, breaking plates. When she attempted to help the valet clean up, the valet warned Hutchinson to stay clear of him.
3. On the evening of January 2, Giuliani asked Hutchinson, “Cass, are you excited for the 6th? It’s going to be a great day. We’re going to the Capitol. Talk to the Chief about it.” When she spoke with Meadows, he said “there’s a lot going on Cass … things may get real, real bad on January 6.”
4. On January 4, Trump’s national security advisor Robert O’Brien asked if he could speak with Meadows about potential violence on January 6. Tony Ornato, Deputy Chief of Staff in charge of all security, also had reports of potential violence on January 6.
5. On January 5, Trump asked Meadows to speak with Roger Stone and Mike Flynn; Hutchinson believes they talked. Flynn had set up a “war room” at the Willard Hotel. Meadows wanted to join their meeting but Hutchinson advised against it. He dialed into the meeting instead.
6. On the morning of January 6, Pat Cipollone, the White House counsel, asked Hutchinson to “please make sure we don’t go up to the Capitol, we’re going to get charged with every crime imaginable.” He was “concerned we were obstructing justice or obstructing the electoral count” and “look like we were inciting a riot.”
7. Moments before his January 6 rally on the ellipse, Trump was angry because he wanted the area to be filled with his supporters and worried that camera shots would show it sparsely filled. When told that Secret Service wasn’t letting people with dangerous weapons through the metal detectors (magnetometers), Trump said: “I don’t fucking care they have weapons. Let my people in. They aren’t here to hurt me. Take the magnetometers away” and “they can march to the Capitol after the rally is over.”
8. Later, when Trump was finishing his speech and rioters were on the way to the Capitol, Ornato asked Hutchinson to let Meadows know of the danger. But Meadows didn’t want to hear it. Sitting in a secure vehicle near the ellipse, Meadows repeatedly shut the door on her. Almost a half hour later, when she was finally able to tell him of the danger, he said “Alright, how much longer does the president have left in his speech?”
9. When Trump was back in his limousine (“the beast”) after the rally, he wanted to go to the Capitol but the Secret Service wouldn’t let him. When chief Secret Service agent Bobby Engle refused, Trump tried to grab the steering wheel and then lunged at Engle.
10. When the riot began, and they were back in the White House. Hutchinson heard Meadows tell Cipillone, “The President doesn’t want to do anything about it.” Moments later, when Cipillone and Meadows met with Trump, Hutchinson heard them talking about the “hang Mike Pence chants.” A few minutes later, when Cipillone told Meadows, “Mark we need to do something more, they’re literally calling for VP to be hung,” Meadows said, “you heard him, he doesn’t think they’re doing anything wrong, and Mike deserves it.”
11. As rioters stormed the Capitol, many people phoned Meadows, urging that Trump tell rioters to stop. He could easily have walked down to briefing room just steps from the Oval Office. But Trump did nothing until 4:17 pm when he released a video, telling the rioters “go home, we love you, you’re very special … go home in peace.”
12. The next day, on January 7, many of his advisers wanted Trump to give remarks about national healing, but Trump resisted. Hutchinson said “he didn’t think he needed to do anything more” and “didn’t think the rioters had done anything wrong, that the person who did something wrong was Mike Pence.” Concerned that his cabinet might otherwise invoke the 25th amendment and relieve him of his duties, Trump ultimately delivered remarks, but still refused to use the words “this election is now over.”
13. Both Giuliani and Meadows wanted presidential pardons.
***
A final note: Liz Cheney, vice-chair of the committee, noted that several potential witnesses had been warned not to testify or to testify in ways that would not implicate Trump. She reminded the public (and any potential witnesses) that this attempted interference was itself a federal crime.
Last week, criminal charges were filed against the Trump organization. The chart shows a majority of Americans approve of those charges being brought (51% to 30%).
As the chart below shows, a plurality also believes charges should be also brought against Trump himself.
In the weeks since the Jan. 6 attack on the U.S. Capitol, federal prosecutors have announced criminal charges against more than 175 people — less than a quarter of those involved in the melee, but enough to provide a rough portrait of the mob and the sprawling investigation into its actions.
At least 21 of those charged so far had ties to militant groups and militias, according to court documents and other records. At least 22 said they were current or former members of the military. More than a dozen were clear supporters of the conspiracy theory QAnon. But a majority expressed few organizing principles, outside a fervent belief in the false assertion that President Donald J. Trump had won re-election.
The accused came from at least 39 states, as far away as Hawaii. At least three were state or local officials, and three were police officers. Some were business owners; others were unemployed or made their living as conservative social media personalities. Many made comments alluding to revolution and violence, while others said the protests had been largely peaceful.
A New York Times review of federal cases through the end of January suggests that many of those in the horde were likely disorganized, but some groups and individuals came to the events of Jan. 6 trained and prepared for battle. The early charges set the stage for those to come as the Justice Department promises to prosecute even those accused of misdemeanor trespass and also devotes resources to more serious crimes, like conspiracy and homicide.
