The unprecedented nature of Donald Trump’s actions—together with vague laws, legal loopholes, and his manipulation of others—could allow the former President to escape being criminally charged for his role in events surrounding the January 6th attack.
of obstructing an official proceeding of Congress, which carry a potential sentence of up to twenty years. But legal experts said that convicting Trump of such a charge could be difficult. Ilya Somin, a libertarian legal scholar at George Mason University and a critic of the former President, told me that Trump’s lawyers would likely argue that it did not apply to him because he did not enter the Capitol on January 6th.
The congressional staffer with knowledge of the committee’s work said that the media had exaggerated Thompson and Cheney’s statements. “The criminal-referral stuff has gotten blown out of proportion,” the staffer cautioned. “It has become the shiny new object.
Ultimately, the decision about whether to prosecute Trump lies with Garland, a former federal judge who has madein the political neutrality of the Justice Department his core goal. Despite Garland’s attempts to divorce the Justice Department from politically charged prosecutions, it is increasingly clear that investigating Trump is becoming the defining issue of his tenure.
David Laufman, a former senior Justice Department official, said he disagreed with criticism of the Justice Department for not having already charged Trump criminally. “Notwithstanding the horrors of January 6th, D.O.J. should not be pursuing criminal investigations or prosecutions against former President Trump or others connected to the attack on the Capitol unless both the facts and the law support doing so under established policy,” he said.
On Wednesday afternoon, Garland gave a speech that was clearly designed to reassure the public and counter critics. The twenty-five-minute address was vintage Garland. He pledged political neutrality andthat “we follow the facts—not an agenda or an assumption.” He promised equal justice for all: “There cannot be different rules depending on one’s political party or affiliation. There cannot be different rules for friends and foes.” And he vowed further measures.
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