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It’s not enough that Donald Trump’s detractors, in punditry and politics, are high-fiving the hearings, convinced that the former president’s own confidantes showed he has been pushing false allegations of election fraud.

Now they want him behind bars.

Drudge even has a photo of him in an orange jumpsuit.

Of course, the Trump-bashers have been telling us, and each other, for years that Trump was heading for imprisonment. Just wait – until Michael Cohen turns on him! Until Bob Mueller finished his probe! Until New York prosecutors flip his top aide in the Trump Organization! Till Merrick Garland brings the indictment!

Former President Donald Trump speaks during the American Freedom Tour at the Austin Convention Center on May 14, 2022, in Austin, Texas.
(Brandon Bell/Getty Images)

The lust to see Trump prosecuted and convicted is almost visceral – and so far, at least, he has stayed one step ahead of the law.

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Now journalists are right that the House testimony by the likes of Bill Barr, Bill Stepien and Mike Pence aides has tied Trump ever more closely to an attempt to overturn the election. If he acknowledged privately that he had lost in 2020, and was warned there was no serious fraud – which Trump still disputes – it puts him at right at the center of Jan. 6.

But even if you don’t agree with that, it’s still a far cry from the unprecedented step of bringing criminal charges against a former president.

When Jerry Ford pardoned Richard Nixon, much of the country felt cheated of the chance to hold him accountable for the crimes of Watergate. Decades later, many, including me, came round to the view that Ford had helped the country heal, that a couple of years of legal wrangling would have kept America mired in the long national nightmare.

This is not an argument against charging Trump. While Nixon resigned and retired to Saddle River, Trump remains the dominant force in the Republican Party and the odds-on nominee for 2024. His continued crusade against the last election, without evidence, is a far more challenging situation than if he’d just decided to putter around Mar-a-Lago.

In an ABC poll taken right after the hearings, 58% said Trump should face criminal charges. But the survey also underscores the white-hot divisions in the country. Some 91% of Democrats, but only 19% of Republicans, support such charges. The figure for independents is 62%. So it’s not hard to imagine that a trial would be even more polarizing that the two impeachments.

That is a tough call for Garland, who himself was denied a hearing as a Supreme Court nominee because of a Republican power play. There is such a thing as prosecutorial discretion. Autocracies are known for throwing the old boss in jail after the new boss takes over.

Media analysts are now warning that such charges might easily fail.

Says the New York Times: “If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.”

Attorney General Merrick Garland speaks during a news conference, Monday, June 13, 2022, at the Department of Justice in Washington.

Attorney General Merrick Garland speaks during a news conference, Monday, June 13, 2022, at the Department of Justice in Washington.
(AP Photo/Jacquelyn Martin)

Which brings us smack up against the question of intent. As someone who’s covered trials, I know full well that prosecutors have to demonstrate willful knowledge that a crime is being committed. If Trump makes the case that he thought he was exploring his legal and constitutional rights to challenge the results, it may be hard to convince a jury otherwise.

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The Times piece says Trump has a long history of disregarding the truth, but that “his continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.”

In an op-ed piece, a former DOJ official in the Bush administration makes a crucial point: Could Joe Biden’s attorney general even bring the case, given the built-in conflict of Trump being a past and likely future opponent of the president?

Representative Adam Kinzinger, a Republican from Illinois, listens during a business meeting of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol in Washington, D.C., U.S., on Tuesday, Oct. 19, 2021. The committee probing the Jan. 6 riot at the U.S. Capitol is escalating its legal showdown with Steve Bannon with a vote recommending the full House hold him in criminal contempt for ignoring a congressional subpoena. 

Representative Adam Kinzinger, a Republican from Illinois, listens during a business meeting of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol in Washington, D.C., U.S., on Tuesday, Oct. 19, 2021. The committee probing the Jan. 6 riot at the U.S. Capitol is escalating its legal showdown with Steve Bannon with a vote recommending the full House hold him in criminal contempt for ignoring a congressional subpoena.
(Sarah Silbiger/Bloomberg via Getty Images)

If not, the AG would have to bring in a special counsel, and decide how much independence to grant that person. Everyone knows how long such independent probes drag on, since the office has only one case. Do we want yet another investigation of Donald Trump seizing the media spotlight for years?

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While he ponders a potential legal defense, Trump is lashing out at the House Jan. 6 committee in a way that suggests he’s angry about all the coverage. He says the “highly Unselects” are trying to “create a FAKE narrative.” Knowing that Georgia’s Brad Raffensperger, who Trump asked to find 11,800 votes, is testifying today, Trump posted: “My phone call to the Georgia Secretary of State, with many other people, including numerous lawyers, knowingly on the line, was absolutely PERFECT and appropriate.” Hmm…where have we heard that word before?

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And, in a swipe at Kevin McCarthy, Trump called the tactic of barring supportive Republicans from joining the panel after Nancy Pelosi vetoed a couple of the minority leader’s choices “a very, very foolish decision.” Which may well be true.

In the end, the criminal question is a no-win situation. Either Democrats will say Trump trashed the law without punishment or Republicans will say his enemies are persecuting him.

 

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