During the past weeks, I have heard disappointment with and criticism of the Biden Administration by citizens and pundits because of a concern that Joe Biden’s possession of classified documents undermines a powerful case against Donald Trump for the classified documents he maintained in Mar-a-Lago and refused to give back. A classified documents prosecution is further compromised because former Vice President Mike Pence has recently found and turned over classified documents that were still in his possession.
Although there are material differences between the seemingly arrogant conduct of Donald Trump in refusing to turn over the classified documents and that of Biden and Pence, the differences are somewhat nuanced and a seasoned prosecutor will be concerned that if Trump is prosecuted and others are not, the non-prosecution of Biden will be the “elephant in the jury room” which could hinder a unanimous verdict. I am not saying that there will not be a classified document prosecution, but I am saying that bringing one now will be much harder.
I am not particularly concerned about this development, because the central allegation against Trump which must be prosecuted, is the attempted coup after he lost the election. To me, the classified documents case is substantial but relatively “small potatoes” compared to Trump’s assault on our democracy.
As to the seditious conspiracy allegation, the January 6th Select Committee Investigation produced compelling evidence that Donald Trump and his cohorts (starting on at least election night) created the fiction that he won the election “in a landslide” and the election was being stolen by the Democrats. His team brought over 61 frivolous lawsuits making this false claim – none of which were successful. He then attempted to influence Republican members of the state legislature in Pennsylvania, Michigan, Wisconsin, Arizona, and Georgia to reject the popular vote and not certify the election. Trump also tried to influence Attorney General Barr to falsely state that there were substantial allegations of fraud which required an active investigation by the DOJ; and after this tactic failed he tried to install an inexperienced attorney general to make such a claim and only backed off when there was a threat of mass resignations in the Department of Justice. Next, he and his legal team attempted to influence and pressure Vice President Mike Pence to reject the votes of the electors from the five swing states on January 6th so that the ultimate decision as to the presidency would be thrown into the House of the Representatives which would have given the Republicans a distinctive advantage. His “Hail Mary” tactic was to have a rally on January 6th and in coordination with the Proud Boys and the Oath Keepers lead an assault on the Capitol and Congress to stop the Congress from receiving votes from the Electoral College which made Joe Biden the President of the United States. Beyond the horrendous threat that this tactic posed to our democratic system, people died as a result of Trump’s plan to storm the Capitol.
As mentioned above, the classified document case pales in comparison to the aforementioned attempted coup where people died and our democratic system was assaulted.
Donald Trump’s conduct was particularly egregious with respect to the Georgia election results when he and his allies attempted to influence Georgia Secretary of State, Brad Raffensperger, in a phone call to “find enough votes” to change the election results in his favor. Fulton County District Attorney, Fani Willis, has conducted a special grand jury investigation into the attempted election fraud by Donald Trump and his team where the special grand jury heard testimony from over 75 witnesses. The special grand jury concluded its investigation and issued a special report which the grand jury recommended be made public. In a hearing yesterday before Georgia Superior Court Judge Robert McBurney, the news media made an application that the special report be made public, but DA Fani Willis strongly opposed this application because of her concern that there would be prejudice to potential defendants when a new grand jury with the power to indict considers the case. She also said a decision on an indictment is “imminent.”
Reading between the lines on the court hearing in Fulton County yesterday, Willis was suggesting there was a strong possibility that she was going to indict Trump and other defendants, and she did not want a report that might suggest that defendants be indicted made public until the new grand jury got the case and considered the charges. If the report was released in advance, the first motion to be made by the defense would be to dismiss the indictment based upon prejudicial publicity which resulted from the report rendered by the special grand jury in advance of an indictment.
So that brings us to the on-going investigation by the DOJ of the conduct of Donald Trump and his cohorts attempting to undermine the democratic election. Let’s look at the numbers: according to the news reports, there were 978 arrests as the result of activities in the Capitol building on January 6. There have already been 474 guilty pleas, and 40 of the 41 cases which went to trial have resulted in convictions. Let’s consider the foot soldiers as the people who stormed the capital, and the Oath Keepers and Proud Boys as the midlevel leaders of the attempted coup. In both trials of members of the Oath Keepers, a jury has convicted most of the defendants of the conspiracy to commit sedition and there is now an ongoing trial of the leadership of the Proud Boys for similar offenses.
Given this procedural history, how does the Special Prosecutor Jack Smith and Merrick Garland not prosecute the ring leader and instigator of this attempted coup which resulted in the death of 5 people, including a police officer. I find it inconceivable that skilled prosecutors will ultimately back away from prosecuting the ring leaders. Moreover, it will be even more difficult for the DOJ not to prosecute the ring leaders if Fulton County DA Fani Willis decides to pull the prosecution trigger on what is only a slice of the overarching conspiracy.
If I am reading the outward signs correctly, the practical issue remaining is timing: even if indictments are returned in the Spring, the earliest realistic date for trial would be late Fall or next January – right in the middle of the political season. But any political complications are far less important than bringing to justice those who allegedly conducted a premeditated assault on our democracy.