Should Merrick Garland Go Big or Go Safe in a Prosecution of Donald Trump?

It’s a tough call that matters for ‘the very fabric of democracy’

Photo: Noam Galai. Shutterstock.

I believe the ballot box remains the best solution to the problem of Trumpism’s threat to the rule of law and the stability of American democracy. Any prosecution of former President Trump could easily fail, mostly because of the risk of jury nullification—that is, the risk that a Trump sympathizer on the jury would simply refuse to convict.

But Trump has refused to fade away from public view. He continues to thrust himself into the spotlight, thinking, incorrectly, that he thus immunizes himself from prosecution. Instead, Trump’s search for the spotlight indicates his brazen unrepentance, and when the evidence of his potential illegality is so pervasive and overwhelming, the act of overlooking this evidence becomes, itself, an insult to the rule of law. In fact, the mountain of evidence is now so great that Attorney General Merrick Garland and other prosecuting authorities will not only look foolish if they ignore it; they will be almost as destructive of America’s cherished legal norms as Trump has been.

Thus, it’s increasingly likely that Trump will face criminal charges (in addition, of course, to the civil suit that the New York attorney general has filed). It now seems impossible for Trump to avoid indictment—even if, as I still believe, he may avoid conviction through a hung jury.

The question then becomes, Which charges ought to be brought and why?

The ‘Al Capone Dilemma’ and the Case for Going Small

In answering that question, prosecutors face what might be called the “Al Capone dilemma.” Capone, of course, was one of the most powerful criminal bosses in Chicago during Prohibition, leaving a trail of murder and mayhem in his wake. Yet in the end, his criminal empire was undone by a criminal tax charge. The prosecutors chose to bring this charge because it was easier to prove, even though in doing so, they left a great deal of Capone’s criminal behavior unpunished.

Sometime soon, federal and state prosecutors will need to make the same decision about former President Trump. Should they bring simpler, easier, more readily provable charges, or should they bring charges that fully describe the nature of his conduct?

Several simpler charges are immediately at hand. For example, at the federal level it already seems clear that Trump has illegally retained national defense information from his presidential files and stored it at his resort in Mar-a-Lago.

Under the Presidential Records Act, Trump was obliged to return such documents to the government when he left office. Moreover, his apparently willful and deliberate retention of materials related to national security, some of which were classified at the highest levels, would violate the Espionage Act—a law whose penalties Trump increased during his term in office. On top of that, Trump, acting either directly or through his attorneys, may have attempted to obstruct the investigation of his retention of the documents, having apparently instructed his attorneys to falsely declare that all the government documents in his possession had been returned and that those materials he retained were personal property.

While no criminal case can ever be considered a “guaranteed win,” this case against Trump has many virtues. Most notably, it would be relatively easy to understand and to prove. The crimes in question are not complex, and proving the case would require only a limited number of witnesses and exhibits. If prosecutors have a choice, they always prefer simple, short, readily provable cases. Complex matters tend to confuse the jury and leave them with questions. Prosecutors often say that “simple cases make easy convictions,” and Trump’s illegal retention case seems to fit the bill.

Likewise, the Georgia prosecutors should find the case that Trump violated Georgia state law easy to prove. Trump was, quite literally, caught on tape asking Georgia state officials to alter the vote in his favor—“find me 11,000 votes”—without providing any apparent justification for the request other than his plain and simple desire to win.

Of course, both the state and the federal case have at least one problem: They would probably have to be decided in a location favorable to Trump. To be sure, the federal defense information case might be brought in Washington, D.C., but Trump’s lawyers would probably manage to have it transferred back to the locus of the alleged crime: Florida. And the Georgia elections case must, of course, be brought in Georgia, where an alleged ambiguity in Trump’s “request” to “find” votes might help him. Both of those are favorable venues for Trump: They are replete with Trump’s supporters, some of whom would almost certainly be included in any jury selected. Hence, despite the simplicity of these cases, they’re not quite ideal.

The Challenge of Going Big

By contrast, a criminal case against Donald Trump arising from the Jan. 6 insurrection would be large, complex, convoluted and, in many instances, still somewhat obscure. Indeed, it is fair to say that a broad criminal case arising from the Jan. 6 assault on the Capitol—which might involve charges, for example, of seditious conspiracy—would really be several smaller criminal actions tied together by a central theme: that Trump tried to reverse the result of the 2020 election, which he knew he had lost.

One part of the case would be the federal equivalent of the Georgia elections case, where it appears Trump sought to change the result of the state vote. But here the situation is significantly more complex. Consider just a few of the strands of evidence that would go into a broad federal election fraud criminal case: First, the government would need to prove that Trump knew he lost the election. Establishing that as a baseline would provide evidence of the corrupt motivation in everything he subsequently did. To be sure, there are plenty of witnesses who would testify to the fact that they told Trump he lost, but Trump would respond that he simply didn’t believe them, that they were wrong and that his other advisers had assured him there were problems with the vote count.

Even if prosecutors could show Trump actually knew he lost anyway, they would then have to untangle a complicated skein of events that included some difficult and challenging legal and evidentiary issues. Here is just a sampling:

• One aspect of the alleged plan to overturn the election was to persuade state officials who supported Trump to submit slates of fake electors. These extra slates were apparently meant to create a dispute about the results in those states and thereby provide a basis for otherwise groundless challenges to them in Congress on Jan. 6. We have evidence of the plan and the role of many of Trump’s advisers in it. But what part did Trump himself play in the creation of these slates of fake electors?

• Trump lawyer John Eastman devised a theory that would have allowed Vice President Mike Pence to unilaterally certify Trump as the victor of the election during the Jan. 6 counting of the electoral votes in Congress. The hope apparently was to pressure Pence into wrongfully calling the election for Trump. But how can prosecutors prove Trump’s effort to corruptly influence Pence’s actions if Pence declines to voluntarily testify? To be sure, Pence could be compelled to testify via subpoena, but then Trump would intensify the controversy and delay proceedings by asserting an executive privilege to protect their conversations. More to the point, a reluctant witness is often unpersuasive.

• Or consider the alleged efforts in Trump’s Department of Justice to cause state legislators to doubt the validity of their states’ election results. One minor Justice Department official, Jeffrey Bossert Clark, apparently wanted Acting Attorney General Jeff Rosen to tell Georgia that there were problems with their elections. Rosen rightly refused, because no such problems had been found, and Trump reportedly threatened to fire him for failing to support Trump’s efforts to overthrow the election. But given that Trump had the legal authority to fire Rosen for any reason at all, how can prosecutors frame a case against Trump for threatening to do what he is legally allowed to do anyway? The legal question is fraught and complex, even if the evidence is clear.

None of these issues is insurmountable. But it seems clear that each of them would actually be a separate criminal activity, and that individually, the various sets of charges are intricate. Woven together, they would become a vast, complicated set of charges.

And all of that comes before what we might think of as the true “core” of any criminal case against Trump: the physical assault on the U.S. Capitol on Jan. 6. Here, again, complexities abound.

For example, we have evidence of Trump’s role in summoning the mob to Washington, D.C. that day, but little understanding of how—if at all—he interacted with the leaders of the riot on the day itself. While there is some evidence that political consultant Roger Stone may have played a coordinating role, he will never be a witness for the government in any prosecution against Trump. He will resist any subpoena, and his loyalty to Trump is so great that he will, quite likely, accept a contempt citation rather than testify.

Likewise, some parts of the evidentiary record show how Trump’s allies coordinated the funding and organization of the Jan. 6 “Stop the Steal” rally, but contain little evidence linking that funding to Trump. In addition, there are still significant evidentiary gaps about why the deployment of the Washington, D.C., National Guard, which was under Trump’s authority, was delayed for so long that day. Though there is pretty clear evidence that Trump was aware of the riots and did nothing, prosecutors prefer cases based upon affirmative acts of misconduct to those premised on a failure to act as one had a duty to. In the case of inaction, the defense can, for example, argue misunderstanding, incompetence or lack of legal obligation—all factors that might make proof beyond a reasonable doubt difficult to achieve in a criminal case.

Again, none of this is decisive, and even the evidence we already have paints a clear picture of Trump’s potential criminal engagement in an effort to overthrow the results of the election. Many of the remaining evidentiary gaps can be filled with additional investigation by the Justice Department if that investigation is not short-circuited by a change in the political control of Congress, which holds the department’s purse strings. But as even this short summary makes clear, the events surrounding the Jan. 6 insurrection are multifaceted and, at times, confusing. It will be a brave prosecutor indeed who brings a broad conspiracy charge incorporating all of the allegations above.

Resolving the Dilemma and Fortifying ‘the Political Religion of the Nation’

How then should Merrick Garland resolve the Al Capone dilemma? To begin with, he needs to answer an antecedent question: Is the effort worth it? To be sure, a prosecution would validate the rule of law, but as I’ve noted elsewhere, it comes at the risk of destroying civil peace. If a conviction is unlikely because of the potential for jury nullification, Garland might reasonably ask whether the ensuing civil discord and deepening social divides would be worth the risk. 

If he concludes that the risk is worth it, as it seems increasingly likely he must in order to uphold such essential values as accountability and the rule of law, Garland might choose to prosecute the easiest case to prove. And if he wants to secure a conviction, the answer is clear: Find the simplest, clearest case you can charge in Washington, D.C., where Trump’s political support is very thin. That will have the greatest chance of success.

And to be fair, perhaps that is all we should ask of the attorney general. His charge is administering criminal law, and we should not expect the criminal law to solve our political problems. His goal is to prove criminal conduct beyond a reasonable doubt—nothing more, and nothing less.

And yet. …

That result seems deeply dissatisfying. I, for one, would be delighted to see Trump held accountable for his apparently criminal decision to retain classified documents, but one can readily imagine the reaction of the Trump’s acolytes to such a charge: “Ha, see! All they could do was charge him with a technicality.” Even a conviction on that charge—or a similar one—would be met with skepticism.

So even though it is not Garland’s job to save America, perhaps he has to assume that burden anyway. If Garland is going to risk civil discord and take the unprecedented step of prosecuting a former president, and if, as we’ve noted, a prosecution seems increasingly likely and essential given the mountain of evidence, then the gravity of that step may demand that he seek not just a ready criminal resolution, but far more importantly, a historical accounting. The Department of Justice needs to make its justification for this action abundantly clear, and that justification must not merely be the argument that Trump has committed a crime. The justification is the far more important cause of supporting the rule of law—what Abraham Lincoln called “the political religion of the nation.”

How may we indict thee, Donald Trump? There are so many ways. And the path forward remains fraught. But as the evidence mounts it increasingly looks as though the very fabric of democracy requires mending. It is much to ask of the judicial system; perhaps it is too much. But that is all we can do in troubled times—hope for institutional fortitude.

As he faces the Al Capone dilemma, Attorney General Garland increasingly has only one choice: He must go big. He must make good on the promise he made in July to “pursue justice without fear or favor” and “hold everyone … who was criminally responsible for events surrounding Jan. 6 ... accountable”—even if that means prosecuting former President Trump.

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