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Andrew C. McCarthy is a former federal prosecutor and editor-in-chief of National Review.
I have long opposed the idea of prosecuting Donald Trump, for fear that a step like this would polarize the country and set a dangerous precedent. I am concerned about the implications that the current administration is pursuing its predecessor and main political opponent. But the testimony of former White House aide Cassidy Hutchinson has made me rethink this premise and at least consider whether prosecution is justified.
Prior to Hutchinson’s testimony, there was a paucity of public evidence that Trump was actively complicit in the January 6, 2021 violence, rather than recklessly indifferent to its potential. But according to Hutchinson, Trump was fully aware that the Jan. 6 mob was well-armed, but he voluntarily encouraged her to march to the Capitol.
This representation casts a more condemnatory light on the deep breach of the former president’s duty and, as I see it, may change the calculation that Attorney General Merrick Garland will have to make.
When prosecuting potentially incriminating evidence is presented to prosecutors, there are always two questions: Do we have enough evidence to prosecute crimes? And do we have to exercise our discretion to do so?
Here, the answer to the first question seems simple. A rational jury could conclude, beyond any reasonable doubt, that Trump aided and abetted intimidation and assault by force of government officials, and that he corruptly obstructed a process in Congress (i.e., the counting of electoral votes required constitutionally).
The second question is much harder. The prosecutor’s discretion cannot be reviewed. It is a call from the executive branch. It is the responsibility of the chief executive to do whatever is in the best interest of the United States, not just to seek a proper outcome to enforce the law.
By the way, no one is above the law, not even the president; but we do not prosecute all demonstrable crimes either. Other considerations often apply, such as preserving domestic tranquility and institutional integrity. The last eight years of politically charged investigations, including criminal and national security investigations by Trump and Hillary Clinton, both major presidential candidates, should teach us that prosecutors’ interference in electoral policy has an effect. corrupt on the democratic process and the Department of Justice itself.
The Department of Justice should have a higher standard for prosecuting political cases, holding hands unless there is a serious and easy-to-understand crime for the public. This is especially so when the department, which ultimately responds to the president, is investigating the president’s main political rival, who, in this case, seems willing to seek the presidency again.
There should be no room in political cases for charges that include vague crimes based on abstruse legal theories, such as an obstruction charge based on Trump’s promotion of false theory that attempts to derail the counting of certified election votes. by Congress. If there is no public consensus, transcending ideological and partisan lines, that Trump has committed serious crimes that deserve to be prosecuted and likely imprisonment, an indictment would be perceived as an enviably selective prosecution by much of our deeply divided country. It would favor recovery: politicize prosecutions once Republicans regain power, as they will inevitably do at some point.
Violence is the bright line. That’s why those of us who oppose Trump’s prosecution should, at the very least, re-check our facilities in light of Hutchinson’s testimony. We are no longer talking only about the irresponsible use of a president of incendiary rhetoric that can be credibly represented as a constitutionally protected discourse.
Hutchinson offered a powerful testimony, albeit some second-hand, that Trump knew the mob was armed to the teeth. And that, thus conscious, he not only urged the crowd to march towards the Capitol, but also wanted to lead the march. He was bitterly angry when his assistants and security team frustrated him. In addition, he not only abdicated his constitutional and moral responsibilities to take steps to quell the attack; he voluntarily aggravated the danger posed by the mutineers to the vice president and members of Congress.
Former White House aide Cassidy Hutchinson testified June 28 about President Donald Trump’s actions around the January 6 Capitol attack. (Video: JM Rieger / The Washington Post, Photo: Jabin Botsford / The Washington Post)
Of course, Biden’s Justice Department would be better positioned to claim that violence changes the game if it dealt with radical left-wing violence in 2020 with the same firm hand it has applied to the Capitol riot. That said, the riot is justifiably doomed. If the public is convinced that Trump was not only a common demagogue, but was deliberately complicit in fomenting a threat of force that predictably became the use of force, then the Justice Department would have a firmer basis in the ‘time to exercise his discretion to accuse.
To be clear, Hutchinson’s testimony is not a key. The public case to accuse Trump has not been presented, and will not be presented by a congressional committee that much of the country correctly considers too partisan: the theatrical presentation of a blatantly biased side, not a real investigation with contradictory, cross-examination hearings . and the crystallization of controversial issues.
Undoubtedly, Congress has a duty to ensure comprehensive political accountability for the atrocious riot of the Capitol. But unless Trump is widely and clearly seen as a criminal culprit for the violence, his indictment would shatter the country. I think processing can do more harm than good. I also know I could be wrong about that. As good judges tell jurors: don’t decide until you’ve heard all the evidence.
The January 6 insurrection
The select committee of the House investigating the January 6, 2021 uprising is holding a series of high-profile hearings this month.
Hearings in Congress: The House committee investigating the attack on the U.S. Capitol has conducted more than 1,000 interviews over the past year. He is sharing his findings in a series of hearings starting June 9th. Here’s what we know about audiences and how to view them.
The riot: On January 6, 2021, a pro-Trump mafia stormed the U.S. Capitol in an attempt to stop certification of the results of the 2020 elections. Five people died that day or immediately thereafter, and 140 police officers were killed. attacked.
Inside the siege: During the riot, rioters came dangerously close to entering the building’s inner shrines while lawmakers were still there, including former Vice President Mike Pence. The Washington Post examined text messages, photos, and videos to create a video timeline of what happened on Jan. 6.
Charges: Proud Boys leader Enrique Tarrio and four lieutenants have been charged with seditious conspiracy, joining Oathkeepers leader Stewart Rhodes and about two dozen associates to be charged with their involvement in the attack on the Capitol. These are just a few of the hundreds who were charged, many of whom received substantially lighter punishments than those demanded by the government.