For the commission of inquiry into the assault on the Capitol on January 6, 2021, there is no doubt: Donald Trump broke the law and incited the insurrection. But if its members think they’ve presented damning evidence, taking the case to court — and making sure it’s settled — is a whole other ball game.
The group of elected officials summed up its 18 months of investigation Monday at a final public meeting, during which its vice-president, Republican Liz Cheney, declared that the ex-head of state was “unfit” to take on new public functions.
According to the commission, the evidence gathered “led to a clear and overriding conclusion: the central cause of January 6 was one man, former President Donald Trump, whom many others followed.”
The panel voted unanimously to call on the Justice Department, led by Attorney General Merrick Garland, to prosecute the ex-tycoon, recommending four charges: calling for insurrection, conspiracy to against the American State, obstruction of an official procedure (certification of a presidential election) and false declarations.
Donald Trump is accused of spending weeks lying to his supporters by claiming the 2020 presidential election was stolen from him, and of setting ablaze a crowd of his supporters in Washington before the assault and then doing nothing to stop the violence.
Legal experts described the case presented by the commission as convincing, while warning that the rules applying to prosecutors in the context of a criminal case were more restrictive.
One-way
“There is a set of federal rules of evidence that govern what evidence a jury can hear,” writes former prosecutor Joyce Vance in an analysis of the commission’s work.
“The Department of Justice is required to carefully assess the evidence for issues such as reported statements, relevance and harm suffered to determine whether sufficient admissible evidence is available. »
The Republican never gave his version of the facts in detail, contenting himself with denouncing a political witch hunt and attacking the panel.
Analysts point out that the commission’s presentation was one-sided and did not address possible lines of defense for Mr. Trump, such as whether his speech could be protected by the Constitution’s First Amendment, relating to freedom of expression.
Even Donald Trump’s Vice President Mike Pence, reviled by some Trumpists for refusing to help overturn the election — and who accused the billionaire of “endangering” him on Jan. 6, 2021 — , defends it today by arguing that having listened to bad advice from lawyers is not a crime.
There is a set of federal evidence rules, which govern what testimony a jury can hear
Above all, Trump tended to operate in an elusive manner — handing over tasks to subordinates, avoiding confrontation, avoiding emails. Admissible evidence could therefore be more difficult to find than supporters of the January 6 commission expect,” lawyer and former assistant prosecutor at the Ministry of Justice, Kevin O’Brien, told AFP.
O’Brien thinks Justice Minister Merrick Garland will tread very cautiously, and doesn’t expect to see a ruling on an indictment anytime soon.
Joyce Vance says for her part that prosecutions are far from being “automatic”.
Go further ?
For Gerard Filitti of the Lawfare Project, if the case goes to court, the most likely outcome would be a split jury, as many Americans believe Donald Trump really thought he was the victim of an injustice.
“The ministry probably won’t charge [l’ex-président] only if he feels sure of getting a conviction, he told AFP. And more detailed evidence is needed about what Trump knew, and when he knew it, than what was made public by the commission.”
Committee head Bennie Thompson acknowledged the difference in evidentiary requirements between a parliamentary inquiry and a criminal investigation, calling the panel’s work a “road map” for prosecuting Mr Trump.
The department is not even required to review the elements of the commission. But several scenarios are possible.
Prosecutors could, for example, go much further than the commission, using the powers that elected officials do not have to issue subpoenas to appear before grand juries and to obtain evidence that the panel cited, but did not managed to develop.