For 2022, Resolving to Hold Trump to Account

         With the new year now well underway, it is time or past time for the Supreme Court, the Justice Department, and prosecutors in Georgia to resolve that the former president, Donald J. Trump, will be held to account for the crimes that he appears to have committed in his unsuccessful effort to overturn the results of the 2020 presidential election.

The Supreme Court has the simplest role to play in vindicating the rule of law in investigating Trump’s role in the violent attack on the U.S. Capitol by a mob of Trump supporters one year ago, on January 6, 2021. The justices can and should dispose of Trump’s baseless plea to prevent the special House committee investigating the attack from gaining access to White House records regarding Trump’s role in summoning protesters to Washington, in urging them to march to the Capitol, and in sitting by while the destructive violence unfolded before his eyes on television coverage of the events.

Trump’s emergency application to stay the federal court rulings upholding the House committee’s subpoena has been pending with the Court since December 23. Trump, a defeated former president, is claiming executive privilege in his effort to block the release of the documents. Two lower federal courts, including the D.C. Circuit, rejected the argument. And the current president, Joe Biden, the only person entitled to invoke executive privilege today, is not claiming executive privilege in the case.

Trump’s possible criminal liability for the Jan. 6 insurrection was laid out in a pre-Christmas op-ed essay in the New York Times coauthored by the Harvard Law School professor Laurence Tribe with two former federal prosecutors, Donald Ayer and Dennis Aftergut, who served under Republican presidents. Tribe and his coauthors voiced concern that at that point there were “no signs” that the Justice Department was building a case against the administration officials responsible for encouraging the foot soldiers in the attack  

“The legal path to investigate the leaders of the coup attempt is clear,” Tribe and his co-authors wrote. “The criminal code prohibits inciting an insurrection or “giving aid or comfort” to those who do, as well as conspiracy to forcibly ‘prevent, hinder or delay the execution of any law of the United States.’ The code also makes it a crime to corruptly impede any official proceeding or deprive citizens of their constitutional right to vote.”

In a forceful message to Attorney General Merrick Garland, Tribe and his co-authors warned that Garland must “hold[ ] the leaders of the insurrection fully accountable for their attempt to overthrow the government.” In their words, that goal requires “a robust criminal investigation of those at the top, from the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol.” They listed as possible persons of interest in such an investigation, Trump himself, Trump’s chief of staff Mark Meadows, Trump’s lawyer Rudy Giuliani, White House adviser Steve Bannon, and law professor John Eastman, who laid out a detailed plan for derailing Biden’s Electoral College victory.

In their essay, Tribe and his co-authors acknowledged that the Justice Department “has filed charges against more than 700 people who participated in the violence” but warned that “limiting the investigation to these foot soldiers would be a grave mistake.” Other commentators in the legal blogosphere were also warning that Garland was not pursuing the investigation up to the top.

Garland responded to the criticism last week on the anniversary of the Jan. 6 attack with an hour-long address detailing the status of the investigation, which he called “the largest and most complex, most resource-intensive investigation” in the department’s history. He explained that the initial focus on low-level offenders was in line with “well-established prosecutorial practices.” complete with

            Garland vowed to get to the top, not just to the bottom. “The Justice Department remains committed to holding all Jan 6 perpetrators, at any level, accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” he said. “We will follow the facts wherever they lead.”

Words, words, words—nothing but words, as the liberal political activist Don Winslow noted in a critical tweet that day: “[T]he truth is that 1 year has passed and not one single Trump official, Trump family member, Republican member of Congress or key high-level Jan. 6 plotter has been charged or arrested.”

            The trial of a former president, of course, would raise a host of legal and practical issues and would be a precedent-setting departure from the American political tradition, more akin to the kind of political retaliation seen in banana republics with unsettled democratic practices.

Whatever the status of the Justice Department investigation may be, Trump has been identified as the target of an investigation by the Fulton County district attorney’s office for attempting to interfere in the vote counting in the presidential election in Georgia. The evidence consists of Trump’s phone call to the state’s highest election official, secretary of state Brad Raffensperger, urging him to find the 11,000-plus votes needed for Trump to overcome Biden’s victory in a state that he had expected to carry.

            Convicting Trump in either of the cases would be a formidable challenge for prosecutors and for the judicial system, whether in federal court or in a Georgia state court. Any conviction would be certain to be appealed to the Supreme Court, a court packed with Republican-appointed justices and three appointed by Trump himself. But the rule of law demands that Trump be held to account for his role in what amounted to an unprecedented attack on our very democracy.