The United States Department of Justice must decide whether to file criminal charges against the former president
Donald Trump plans to announce a new presidential bid for 2024 in the coming months, but there is an obstacle that hangs over that dream: jail. Analysts and experts still agree that it is difficult to imagine the former president dressed in orange, but the possibilities have increased in recent weeks.
The public hearings of the special congressional committee investigating the Assault on the Capitol are to blame. Throughout eight appointments broadcast on television, much of the revelations have focused on Trump. And in the midst of so much explosive testimony, it is easy to see why a possible criminal case against the businessman has been building.
There are two clear conclusions.
First, Trump led a campaign to delegitimize the election results that gave Joe Biden victory in 2020.
And second, Trump duped thousands of his supporters into opposing the certification of those same election results.
Can any of those conclusions land Trump in jail? Depends. The United States Department of Justice is precisely focused on this issue. Because it's not just a matter of "Can we bring criminal charges against Trump?", but also one of: "Should we?" The closest an American president has ever come to being charged with a crime was Ulysses S. Grant in 1872, when he had to pay a speeding ticket in a horse-drawn carriage.
Attorney General Merrick Garland, head of the department, faces an extremely difficult decision. And the one who is intricating it even more is Trump himself, who with a presidential candidacy for 2024 could blow up all the efforts of the tax investigation.
The keys of the committee
That Trump goes to jail will not depend on the special committee, but his revelations may be relevant to a potential criminal trial. The Capitol Assault investigation may transfer its findings to the Justice Department and pressure Garland to press charges against Trump.
But what has the committee determined that is so damaging to Trump? The case remains in three keys:
Trump championed a campaign to question the results of the 2020 presidential election for alleged electoral fraud. All this despite being repeatedly told by advisers and courts that Biden had legitimately won.
Trump pressured state politicians, the Justice Department and even Vice President Mike Pence to reverse the election results.
Trump tricked his supporters into attending a rally on January 6, 2021. On that day, Pence was supposed to lead the certification of election results. The process was hindered by the assault on the Capitol by thousands of protesters.
Without "The Big Lie" of voter fraud, it is unlikely that thousands of protesters would have turned out for Trump's January 6 call. And without the propagation of theories with which to reverse the results, it is unlikely that thousands of those same protesters would have stormed the Capitol with a view to re-electing the then president.
It is in the details and the links between those three clues that the Justice Department could land Trump in jail.
Trump to jail? Three likely pathways
Analysts, law professors and former prosecutors agree that the Justice Department currently has few avenues to prove that Trump committed a crime. Much depends on whether star witnesses who have so far refused to testify do so in the coming months.
With the information known so far, especially through explosive testimony like that of Cassidy Hutchinson, there are three likely routes by which the Garland department could file criminal charges against Trump:
Conspiracy to defraud the United States. It is a common charge in tax violations, but it could fit in this case due to initiatives to block the transition of presidential power. That includes inciting violence on January 6, when the electoral results were being certified, although it more likely has to do with the plot to propose false voters1 or with the pressure on Pence not to carry out his functions in the official certification.
Conspiracy to obstruct an official proceeding. Again, the violence of January 6 would come into play, but above all the plot of the false voters and the pressure on Pence.
Election fraud in Georgia. It has to do with a plot that has received less attention during hearings because there is already a state investigation underway against Trump. Garland's department is focusing on possible pressure by Trump and his allies on state politicians to prevent them from certifying their electoral votes.
Trump to jail? Causality and intentionality
The narrative revealed by the special committee through evidence and testimony is clear, but much more complicated is translating those narratives into a successful trial. Unlike what the prosecution should do in a trial, the committee has been able to rely on rumors and third-party versions to draw its version of events. So whether Trump ends up in jail will largely depend on prosecutors proving two factors: causation and intentionality.
Causality. Prosecutors will have to show that there is a correlation between Trump's words and actions, and the anti-democratic initiatives that were unleashed in the context of the Assault on Capitol Hill. That includes the violence during January 6 or the efforts to reverse the electoral results throughout the previous weeks.
Intentionality. Prosecutors will have to prove that Trump wanted to reverse the election results, that he trumpeted the narrative of alleged voter fraud even though he knew it was a lie, or that he sought the violence unleashed by his supporters on Capitol Hill on January 6. .
Knowing the committee's revelations, any critic of Trump will be quick to conclude that the former president has the losing side. But whether Trump is found guilty will depend on a 12-person jury reaching a unanimous verdict. And that's where more convoluted considerations come in:
On the matter of causality, there are no messages or testimonies that link Trump directly and explicitly to the violence or the reversal of results. At least for now.
And on the matter of intent, it's hard to determine that Trump believed with certainty that he had lost the election and yet he continued to trumpet lies. No one can get inside his head. Although there is the possibility of showing "willful blindness" because many around him repeatedly told him that he had lost and that his accusations of fraud were inconsistent or directly false.
Trump 2024, or how to get even with problems
Bringing criminal charges against Trump and ending up with a jury finding him not guilty or failing to reach a unanimous decision would be devastating for the Justice Department. Above all, if Trump decides to announce a candidacy for the presidency in 2024 with which to brand the investigations against him as a new political witch hunt.
If he comes out of the trial unscathed, his narrative will be validated and he could even repeat performances without fear of criminal consequences.
And if Trump wins the elections in 2024, he could dismantle any other investigation against him within the Justice Department. He could even pardon himself. It is something that he would be testing himself, according to Rolling Stone sources.
And now that?
Garland has said that no one is above the law, not even a former president. But Trump's influence over a significant part of the electorate makes it more difficult to take the path of trial before 2024.
On the one hand, a Trump in jail could unleash a very adverse public response and undermine the Justice Department's reputation as one more tool with which to settle political scores.
On the other hand, doing nothing in the face of one of the greatest affronts against American institutions, one that came close to unleashing a constitutional crisis, would set a very dangerous precedent.
The Department of Justice has been expanding resources and personnel for months to successfully carry out its multiple investigations on January 6. In recent weeks, and according to media such as The Washington Post, Trump has become one of the main targets of these investigations. It remains to be seen if what they find allows Garland to start a judicial process that will have the attention of the entire planet.
In a presidential election in the United States, candidates must win the popular vote of a state in order to receive all of that state's electoral votes. For example, Biden had won the popular vote in Georgia, so he took all 16 electoral votes in that state to Trump's 0. Those 16 electoral votes are in the form of 16 voters who voted for Biden during the December 14 electoral college. Trump and some of his allies proposed bogus lists of alternative voters in states where they said voter fraud had occurred, including Georgia. They wanted the lists to serve as a justification for rejecting the electoral votes that were certified on January 6.
