Trump’s noose tightens

• Garland has said he intends to hold “everyone – anyone” accountable who was criminally responsible for the attack on Congress; 
• and the Washington Post has reported that federal investigators have been a) asking close aides to former Vice President Mike Pence specifically about Trump’s actions before the attack and b) studying the contents of former senior Trump aides’ phones with the same questions in mind.

These are incremental but significant developments. They reflect a switch in focus by the biggest investigation in the history of the US justice department from the January 6 foot soldiers (nearly 900 of whom have been criminally charged) to their ringleader-in-chief. Garland had said nothing so specific until this week, and his lieutenants had been concentrating more on Trump’s entourage than the man himself. 

And there’s more. 

Georgia. A separate criminal investigation into alleged election fraud by Trump in Georgia hit a bump this week when a judge said prosecutors couldn’t pursue a Trump-supporting “fake elector” for political reasons. But the Georgia case is further advanced than any federal one and it rests on something close to a silver bullet – phone recordings of Trump begging the local Secretary of State to “find 11,780 votes” to overturn the statewide election. 

Timing. Trump could make it harder for Garland to bring a case against him by declaring a third run for the presidency. A rule introduced by former Attorney General Bill Barr to prevent DoJ investigations influencing elections as they did in 2016 would require formal approval from Garland for any prosecution of Trump if he were a presidential candidate. The rule wouldn’t prevent such a prosecution, but it increases the pressure on Garland to make up his mind.

That pressure is already intense. 18 months ago it looked more likely Trump would face trial for financial crimes in New York than political ones in Washington. Now “the evidence [against Trump] is so powerful it can’t be overlooked,” says Professor Bennett Gershman of Pace Law School.

“The only reason Garland might not indict is if he thinks it would be worse for the country in terms of the risk of civil unrest. That’s the calculation he’s making. The evidence itself is overwhelming.”

Gershman sees three pillars to the case for a criminal indictment of Trump for election fraud, obstruction of Congress or both:

• He knew his own claims of a stolen election were bogus because all his legal efforts to prove them failed.
• He urged the crowd on 6 January to interrupt the Senate’s electoral vote count, which a federal judge has already concluded “more likely than not” constituted a felony.
• He simultaneously pursued a plan to send “fake electors” to Washington to upend that count even if the mob could not. 

It’s the fake elector scheme that appears to have done most to stiffen Garland’s resolve. The (delusional) idea proposed by Trump’s lawyers was to draw up alternative slates of Republican electors to replace Democrats in states where Trump wrongly claimed to have won. Claiming an obscure 1960 Hawaiian case as precedent, the new electors would be sent to Washington to reverse Biden’s victory. But emails seen by the NYT appear to show Trump and his lawyers knew their electors were fake because they used the word. The plan was to give Pence a pretext to stop the count, but he refused to go along with it.

To note:

• There is no First Amendment (ie free speech) defence for incitement to violence in the US, as a landmark 1969 Supreme Court ruling in Brandenburg v Ohio made clear.
• Trump would be the first-ever former US president to face a criminal indictment.
• He gave a wildly provocative speech in Washington last weekend, offering among other things a fever dream of quick Chinese-style trials and executions for drug dealers, but unlike most cable channels Fox News declined to cover it live.

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