The DoJ Should Investigate Trump. Here's a Roadmap.
As evidence of Donald Trump’s efforts to overturn the 2020 election mounts, the time has come for the Justice Department to begin, if it hasn’t already, a criminal investigation of the former president’s dangerous course of conduct. Attorney General Merrick Garland has worked to restore the badly frayed public trust in a nonpartisan DOJ. But failing to investigate Trump just to demonstrate objectivity would itself be a political decision — and a grave mistake. If we are to maintain our democracy and respect for the rule of law, efforts to overturn a fair election simply cannot be tolerated, and Trump’s conduct must be investigated.
The publicly known facts suffice to open an investigation, now. They include Trump’s demand that Georgia Secretary of State Brad Raffensperger “find” 11,780 votes to declare he won that state’s election; Trump’s pressure on acting attorney general Jeffrey Rosen as well as Vice President Mike Pence to advance the “big lie” that the election was stolen; the recently revealed phone call in which Trump directed Rosen to “just say the election was corrupt, [and] leave the rest to me,” and public statements by Trump and associates such as Rudolph W. Giuliani and Rep. Mo Brooks on Jan. 6 to incite the mob that stormed the Capitol.
None of these facts alone proves a crime beyond a reasonable doubt, but together they clearly merit opening a criminal investigation, which would allow prosecutors to obtain phone and text records, emails, memos and witness testimony to determine whether Trump should be charged.
One possible charge is conspiracy. It is a federal crime for individuals to agree to defraud the United States by interfering with governmental functions. Special counsel Robert S. Mueller III included such a conspiracy in his indictment against the Internet Research Agency, alleging the Russian group engaged in a conspiracy aimed at “impairing, obstructing, and defeating the lawful functions” of government agencies.
An investigation could also explore whether Trump agreed with others — Giuliani, Brooks and possibly members of his inner circle — to obstruct Congress’s function of exercising its statutory duty to certify the election results on Jan. 6. By using disinformation to sow unfounded doubt, Trump and his allies may have tried to induce members of Congress to vote against certifying the election results, creating enough chaos to throw the election to the House, where Republicans controlled a majority of state delegations.
Another plausible charge is obstruction of an official proceeding. The relevant statute makes it a crime to corruptly obstruct, influence or impede any official proceeding or attempt to do so. Agreeing with others to obstruct the Jan. 6 vote certification for a wrongful purpose and the commission of any act in furtherance of that agreement would suffice to prove a violation, putting Trump at the heart of a conspiracy, with his public statements and tweets constituting overt acts.
A related but distinct charge is the Racketeer Influenced and Corrupt Organizations Act, “RICO,” which has often been used beyond its original intended target of organized crime. To prove RICO, the DOJ would need to establish that Trump was associated with an enterprise affecting interstate commerce, such as the office of the presidency, and committed at least two racketeering acts. One such act is extortion, which encompasses transmitting a threat to harm another’s reputation with intent to extract something of value. Trump’s conversations with Raffensperger, in which he suggested the secretary of state might have committed a crime and “that’s a big risk to you,” could fit that definition.
Equally fit charges for investigation include violating the federal voter fraud statute and coercing federal employees to violate the Hatch Act by working to advance his political candidacy. Trump’s well-documented efforts to pressure state officials not to certify Biden’s election could run afoul of the voter fraud law, which prohibits anyone from defrauding the residents of a state of a fair election by tabulating false ballots, although Trump might argue that he believed he had won in those states.
Likewise, Trump’s pressure on Rosen to “just say the election was corrupt” could run afoul of the Hatch Act’s criminal provision, which makes it “unlawful for any person to intimidate, threaten, command, or coerce” a federal employee to “engage in … any political activity.” It doesn’t get much more coercive or political than pressuring your attorney general to declare an election corrupt without proof.
Two other potential crimes that merit investigation are inciting insurrection and seditious conspiracy. Both statutes appear to fit the facts, but the DOJ might hesitate to bring charges because of possible defenses. For instance, even though language intended and likely to incite imminent violence meets the Supreme Court’s test for unprotected speech, a court might conclude that Trump’s exhortations to the crowd do not rise to that level of incitement and are protected by the First Amendment.
The bottom line is this: Now that Trump is out of office, the DOJ’s view that sitting presidents cannot be indicted no longer shields him. Attempted coups cannot be ignored. If Garland’s Justice Department is going to restore respect for the rule of law, no one, not even a former president, can be above it. And the fear of appearing partisan cannot be allowed to supersede that fundamental precept.
Laurence H. Tribe is Carl M. Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Barbara McQuade is a law professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan. Joyce White Vance, the former U.S. attorney in Alabama, is a professor at the University of Alabama School of Law.