Recent blockbuster news reports have revealed that former President Donald Trump was aggressively pushing Justice Department officials to help him overturn the results of the 2020 presidential election.
For those of us who previously worked in the Department of Justice, this is… unfathomable.
The good news is that these revelations have inspired swift government action in at least some neighborhoods. For example, the Justice Department’s Office of Inspector General quickly announced an investigation into Trump’s lobbying campaign. The Senate Judiciary Committee hastily arranged a hearing and spent seven hours – on a Saturday in August – questioning the Trump-era acting attorney general jeffrey rosen about what he knew and when he knew it.
Yet the burning question on the minds of many remains: is the Department of Justice conducting a Trump criminal investigation for his attempt to illegally retain power by seeking to corruptly undo President Joe Biden’s victory? While we don’t yet have a report answering that question, given my three decades of experience as a federal prosecutor, I firmly believe the answer is “yes.”
We have known for a long time that Trump disputed the results of the presidential election. Indeed, even before Election Day, Trump was constantly complaining that the only way to lose was if the election was “rigged” against him. Many saw this as a transparent attempt by Trump to soften the ground for his inevitable attack on the election results should he lose.
Then he lost. Historically. And, as we all know, he didn’t take it very well. Trump first dispatched his team of third-rate lawyers to courts across the country spitting without support – indeed, insupportable — election fraud allegations. Judges have consistently dismissed and dismissed these spurious charges.
When legal challenges reached an impasse, Trump tried another tactic: He told some of his Justice Department officials to just say the election was corrupt and leave the rest to him and his allies. Republicans in Congress.
When all other efforts failed, Trump rallied his supporters in Washington on January 6, drove them into a frenzy with inflammatory claims of a stolen election, and hurled them toward the U.S. Capitol with express orders to “stop ” what was happening. up there. He falsely called it “robbery”, but the reality is that the President of the United States told an angry mob to go to the Capitol and stop the certification of his opponent’s election victory. This is a classic example of inciting insurrection or rebellion.
We now know that after Trump told his Justice Department officials to lie and say the election was corrupt, at least one official took it up. Jeffrey Clark, then acting head of the Justice Department’s Civil Division, wrote and circulated a letter reporting disturbing — and unbearable — allegations of voter fraud and giving Georgia and other states a scorecard. road to invalidate Biden’s victory, despite the popular vote.
I sleep well at night, confident that my friends and former Justice Department colleagues are indeed investigating these cases.
And that revelation inspired the rare seven-hour session, in the heat of an August Saturday, of the Senate Judiciary Committee to take testimony from Rosen on the former president’s pressure campaign.
Although the revelations about what appears to have been a conspiratorial alliance between Trump and Clark (more on that momentarily) appear to have accelerated the pace of investigations in Congress, we don’t yet know if the Justice Department is investigating the matter for assessing whether Trump’s conduct warrants criminal prosecution. In fact, there is a growing chorus of complaints that it appears the Justice Department is not criminally investigating these cases.
As a former career federal prosecutor, I sleep well at night confident that my friends and former Justice Department colleagues are indeed investigating these cases.
It is true that we have no public reports that the Department of Justice is criminally investigating Trump for attempting to retain power through bribery. But frankly, it’s as it should be. Ordinarily, the Department of Justice does not speak or even confirm the existence of a criminal investigation.
Just look at the recent arrest of longtime Trump friend and chairman of the inaugural committee, Tom Barracks. On July 20, an indictment fell like lightning on a day when no one expected a thunderstorm. Little did the public know that Justice Department prosecutors worked long and hard, presenting evidence of Barrack’s alleged crimes to the grand jury. Yet after reading Barrack’s indictment, I can tell you from experience that the kind of evidence documented therein took thousands of hours of work for FBI investigators and federal prosecutors to obtain, piece together , analyze and present to a grand jury on the way to indictment.
Trump’s conduct appears to have violated a number of federal laws. As Barbara McQuade, Joyce Vance and Lawrence Tribe persuasively argue in their recent joint op-ed in The Washington Post, Trump has potentially committed the following crimes: conspiracy to defraud the United States, obstructing official congressional process, inciting insurrection, seditious conspiracy, and the like.
Let’s just look at the crime of conspiracy as it relates to the conduct of Trump and Clark. A conspiracy is simply an agreement between two or more people to commit a crime. Then one of the conspirators would have to do one thing to commit the crime, or what the law calls an “overt act.” Once the overt act is committed, the crime of conspiracy is complete and can be charged. It is no defense that the conspirators ultimately did not commit the crime they agreed to commit.
As part of his quest to retain power through corruption, Trump told Justice Department officials to lie about the election results, say they were corrupt, and let him go from there. In other words, Trump was enlisting co-conspirators. Clark voluntarily joined the conspiracy. Subsequently, Clark drafted and distributed to other Department of Justice officials a letter to Georgia state officials describing non-existent electoral fraud.
I challenge a single person with any prosecution experience to plausibly claim that there is not enough evidence to investigate whether a crime “could have happened”.
Indeed, part of Clark’s letter was downright Trumpian: “The Department of Justice is investigating various irregularities in the 2020 election. … We have identified significant concerns that may have impacted the outcome of the election in several States. … Undoubtedly many Georgian state legislators are aware of irregularities, attested to by various witnesses, and we have heard of their complaints.”
This is absurd in the extreme; it reads like something out of The Onion. But it’s the first salvo in a letter that represents Clark’s attempt to persuade Georgia state officials to reject Biden’s election victory in favor of picking a list of voters for Trump. The writing and dissemination of this letter is an overt act in the Trump-Clark conspiracy.
Why am I so convinced that the Justice Department is criminally investigating Trump? Simple: the standard for the FBI and the Department of Justice to open a criminal investigation is “proper preaching”. It’s just a fancy way of saying there’s evidence that a crime may have been committed.
Specifically, the FBI’s Guide to Domestic Investigations and Operations defines “preaching” as evidence that “activity constituting a federal crime…has or may have occurred, is or may be in the process of occur”.
I challenge a single person with any prosecution experience to plausibly claim that there is not enough evidence to investigate whether a crime “could have happened”. I am confident that the Justice Department has “adequate preaching” that Trump may have committed an election-related crime and is investigating it accordingly.
Justice often seems to take forever. And then it comes all of a sudden. We will just have to stay tuned.