(New York) In 2021, the US Justice Department claimed 42,302 guilty verdicts in criminal cases its prosecutors launched across the United States compared to just 128 acquittal verdicts, according to an official report.
What do you attribute such an impressive batting average to? The fact that federal prosecutors reserve their indictments for cases they have a very good chance of winning, under strict criteria.
Way of saying that for each case there is at least one devil’s advocate among the prosecutors who seeks to find the fault or faults likely to torpedo a possible prosecution. Donald Trump’s case will be no different when it comes to his role in the events leading up to the attack on the United States Capitol on January 6, 2021.
The members of the January 6 commission are convinced that this role should lead to Donald Trump being prosecuted for four crimes, hence their recommendations to this effect adopted unanimously last Monday. In their final report released three days later, they accused the former president of orchestrating “a multi-part plan to overturn the 2020 presidential election”.
The Department of Justice is under no obligation to consider such recommendations or findings. But his prosecutors will not fail to scrutinize the transcripts of some 1,000 interviews conducted by the January 6 commission during its investigation.
Any devil’s advocate worth their salt will view these documents with a critical eye.
Typically, federal prosecutors or investigators like to be the first to interview a potential witness in a given case. However, the fact that key witnesses have already given their version of the facts before the commission of January 6 increases the chances that contradictions will later slip into their deposition or testimony. Contradictions that Donald Trump’s lawyers would try to take advantage of.
But before we get any further into the devil’s advocate game, let’s look at the rules that guide federal prosecutors in their decisions about whether or not to charge a suspect.
According to the “Handbook of Justice”, prosecutors must only “initiate or recommend” a criminal prosecution if “a person’s conduct constitutes a federal offense”. Further, the “admissible evidence” must be “sufficient to obtain and maintain a conviction”.
The devil’s advocate will focus on the admissibility of evidence. Thus, one of the most powerful testimonies heard before the January 6 commission could be amputated from its most damning elements for Donald Trump.
PHOTO JACQUELYN MARTIN, ASSOCIATED PRESS ARCHIVES
Cassidy Hutchinson is sworn in on the sidelines of her testimony on June 28.
Cassidy Hutchinson, a former employee of the White House, notably recounted having learned from a colleague that Donald Trump had grabbed his driver by the throat when he found that the latter refused to drive him to the Capitol after his speech on January 6, 2021.
If prosecutors do not obtain corroboration from a direct witness, a judge could conclude that it is only inadmissible hearsay. A devil’s advocate could find several other hearsays of the same kind.
That said, he probably wouldn’t need to remind prosecutors that a trial against Donald Trump would be nothing like the public hearings of the Jan. 6 commission. Prosecutors would not be the only ones able to question and choose witnesses. Lawyers for the former president could conduct tight cross-examinations of prosecution witnesses and call their own witnesses.
Prosecutors would also have to prove “beyond a reasonable doubt” that Donald Trump committed one or more crimes.
A burden that could make it difficult, if not impossible, to condemn the former president for the most serious of the crimes that the January 6 commission attributed to him: the call for insurrection.
Donald Trump’s lawyers would recall that the Supreme Court of the United States protected the kind of speech made by their client on January 6, 2021. In the judgment “Brandenburg v. Ohio”, the highest American court concluded that the freedom of phrase did not prohibit “advocating the use of force or violation of law unless such defense is directed to the incitement or production of unlawful activity which is imminent and likely to incite or produce such an action.
The bar is very high. But what did Donald Trump say on January 6, 2021? He told his supporters to “march” to the Capitol and “fight like the devils,” an expression his attorneys would call mere hyperbole while pointing out that their client also urged his supporters to go “peacefully and patriotically.” “.
Prosecutors could argue that this speech is not the only reason to charge Donald Trump with insurrection. There’s also the 187 minutes he did nothing to stop the violence on Capitol Hill. But the devil’s advocate could have the last word on this issue, as well as on the other crimes of which the commission of January 6 charged the 45e president, including defrauding the United States government and obstructing congressional proceedings.
To convince a jury that Donald Trump committed these crimes, prosecutors would have to prove that the defendant knew he was acting unlawfully. However, the former president could defend himself by reiterating his convictions concerning the fraudulent nature of the presidential election of 2020 and the legal legitimacy of the advice offered by his lawyers, and in particular Rudolph Giuliani and John Eastman.
A devil’s advocate might add a killer question: how do you prove beyond a reasonable doubt that Donald Trump’s denial was insincere? Doesn’t he have a sickly obsession with defeat?