On this morning, two days away from Christmas, retired law professor Laurence H. Tribe and two former federal prosecutors say the best present we can give our nation must include indicting and convicting disgraced and corrupt former President Donald Trump for inciting a violent insurrection that threatened our democracy and way of life.
Tribe and his partners write, in an OpEd published today in The New York Times, that the legacy of current attorney general Merrick Garland will be set by “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.”
To begin with, he might focus on Mark Meadows, Steve Bannon, Rudy Giuliani, John Eastman and even Donald Trump — all of whom were involved, in one way or another, in the events leading up to the attack.
Almost a year after the insurrection, we have yet to see any clear indicators that such an investigation is underway, raising the alarming possibility that this administration may never bring charges against those ultimately responsible for the attack.
While the Justice Department has filed charges against more than 700 people who participated in the violence, limiting the investigation to these foot soldiers would be a grave mistake: As Joanne Freeman, a Yale historian, wrote this month about the insurrection, “Accountability — the belief that political power holders are responsible for their actions and that blatant violations will be addressed — is the lifeblood of democracy. Without it, there can be no trust in government, and without trust, democratic governments have little power.”
The legal path to investigate the leaders of the coup attempt is clear. 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.
Based purely on what we know today from news reports and the steady stream of revelations coming from the House select committee investigating the attack, the attorney general has a powerful justification for a robust and forceful investigation into the former president and his inner circle. As White House chief of staff, Mark Meadows was intimately involved in the effort to overturn the election. He traveled to Georgia last December, where he apparently laid the groundwork for the phone call in which the president pressured Georgia’s secretary of state, Brad Raffensperger, to “find 11,780 votes.” Representative Jim Jordan of Ohio reportedly promoted a scheme to pressure Vice President Mike Pence to reject duly certified Joe Biden electors. And from their war room at the Willard Hotel, several members of the president’s inner circle hatched the legal strategy to overturn the results of the election.
The president himself sat back for three hours while his chief of staff was barraged with messages from members of Congress and Fox News hosts pleading with him to have Mr. Trump call off the armed mob whose violent passion he had inflamed.
Tribe’s partners in this robust reasoning are Donald Ayer, appointed by Ronald Reagan as U.S. attorney for the Eastern District of California and later deputy attorney general under the president, and Dennis Aftergut, a highly regarded federal prosecutor in San Francisco. They lay out a reasoned case that Trump should be convicted for his traitorous acts, locked up, and banned from ever holding public office again.
A comprehensive Department of Justice probe of the leadership is now more urgently needed than ever.
It is also imperative that Mr. Trump be included on the list of those being investigated. The media has widely reported his role in many of the relevant events, and there is no persuasive reason to exclude him.
First, he has no claim to constitutional immunity from prosecution. The Department of Justice’s Office of Legal Counsel has recognized such immunity only for sitting presidents because a criminal trial would prevent them from discharging the duties of their office. Mr. Trump no longer has those duties to discharge.
Nor is exclusion of the former president remotely justified by the precedent President Gerald Ford set in pardoning Richard Nixon to help the country “heal” from Watergate. Even our proud tradition of not mimicking banana republics by allowing political winners to retaliate against losers must give way in the wake of violence perpetrated to thwart the peaceful transition of power. Refusing to at least investigate those who plot to end democracy — and who would remain engaged in efforts to do so — would be beyond foolhardy.
Throughout his public life, Mr. Garland has been a highly principled public servant focused on doing the right thing. But only by holding the leaders of the Jan. 6 insurrection — all of them — to account can he secure the future and teach the next generation that no one is above the law. If he has not done so already, we implore the attorney general to step up to that task.
Donald John Trump is a criminal, corrupt con artist who employs lies and fraud to achieve his depraved ambition. Those who follow him are both ignorant and complacent about his long litany of failings and misdeeds. They have abandoned their love of country for the desire of greed. The Republican Party that he destroyed abandoned what little was left of its honor to follow him blindly along his path of corruption and criminal desire.
Trump and his corrupt cult should be indicted, tried, and convicted. No mercy is deserved and should not be shown, He should be locked away in America’s most toxic and dangerous maximum security facility and left there to rot and die.
Then, and only then, can America begin its long and difficult road to recovery to become at least a fragment of what it once was.
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