In the weeks after the 2020 election, Donald Trump was searching for a way to stay in power and finally settled on a plan that was improvisational in its tactics but focused in its strategy: Get Republican lawmakers in states Joe Biden had won to disregard the choice of voters and appoint pro-Trump electors to be certified by Congress on January 6.
The spectacle of the riot and the justifiable attention on Trump’s potential liability have managed to overshadow a key day in Trump’s plan, January 2, when he spoke with Georgia secretary of state Brad Raffensperger. On the call, which was recorded, Trump harangued Raffensperger over the course of an hour to find some pretext to change the vote total in the state in his favor. If none of the rest had happened, this alone would have justified a federal criminal investigation into Trump for committing election fraud.
A lot has happened since then, but there has been no indication of a criminal investigation focused on Trump and his inner circles, either in the White House or his campaign. Instead, the Justice Department under Attorney General Merrick Garland seems to be pursuing misdemeanor trespass cases at the Capitol more aggressively than potential felony charges for Trump, and Garland appears to have left the responsibility of investigating whether the president of the United States broke federal law to local prosecutors in Georgia. It is a baffling course of inaction that poses serious long-term risks to our constitutional order, and time is running out to do anything about it.
The Justice Department has brought charges against more than 700 people involved in the riot, and over 100 have pleaded guilty. Some judges have suggested prosecutors have been too lenient. The well-regarded chief judge of the federal district court in Washington criticized the incongruity between the department’s dramatic rhetoric about the threat to democracy that day and its actual charging decisions as “schizophrenic” and “puzzling.” Another judge, a former public defender, complained more recently that the people who “created the conditions” on that day by telling people that “our election was stolen when it clearly was not” have not been “held to account for their actions and their word.”
Almost as soon as the Capitol riot was over, legal observers flagged Trump’s criminal exposure for what had transpired. The predicate seemed obvious enough. He had fed his supporters months of incendiary garbage and nonsense about purported election fraud. He had heavily promoted the riot’s preceding protest that day, and he gave a provocative speech just before thousands of people breached the Capitol that called on people repeatedly to “fight like hell” and “stop the steal” before directing them to go to the Capitol. Since then, there have been two efforts to fill in the gaps about what exactly Trump was doing and thinking leading up to the siege.
In June, after months of delay due to the intransigence of congressional Republicans, House Speaker Nancy Pelosi appointed a select committee to investigate the riot, and it has been moving at an impressive clip. The committee has gathered information from nearly 300 witnesses and tens of thousands of documents, including, most recently, a selection of emails and text messages from Mark Meadows, Trump’s chief of staff. They indicate that the White House was well aware of the chaos enveloping the Capitol, with a slew of Fox News journalists — and even Trump’s eldest son — texting Meadows and imploring him to get the president to call off the mob. Laura Ingraham told Meadows that Trump “needs to tell people in the Capitol to go home” and that he was “destroying his legacy,” while Sean Hannity suggested Trump “make a statement” and “ask people to leave the Capitol.” Donald Trump Jr. suggested to Meadows that his father “condemn this shit ASAP.” Trump sent a half-hearted tweet but waited hours before he finally appeared before a camera and told them to go home.
There have also been significant journalistic accounts, but what has emerged is more impressionistic than definitive — a function, no doubt, of limitations in sourcing and cooperation on the part of those closest to Trump. If you read them closely, it is easy to see one of the other major limitations of the method — that it is perfectly legal to lie to journalists — in the form of self-serving and semi-farcical details from Republican sources who present themselves as being far more articulate and confrontational toward Trump in private than they ever were in public then or since. Thus we get House minority leader Kevin McCarthy telling Trump on a call from the Capitol on the day of the riot, “You have to denounce this,” and then–Attorney General William Barr telling Trump in the Oval Office in December that his legal team is “a joke.”
As these revelations have mounted, observers have continued to debate whether Trump and his inner circle should be under criminal investigation for January 6 itself. Trump seemed on the hook for incitement or seditious conspiracy, but there were serious questions about whether his speech that day might be protected by the First Amendment on the theory that he did not intend to provoke the violence, which was perhaps more spontaneous than deliberate. (He told the mob to proceed “peacefully and patriotically,” and the Meadows text messages indicate that many who were close to him were taken aback by what unfolded.) Incitement or sedition theoretically remains open, but there has been no compelling evidence in the public domain — not yet, at least — that indicates Trump intended for the breach and its chaotic fallout to occur (though the fact that he did nothing for hours as the violence mounted is nontrivial circumstantial evidence).
Other theories rely on the criminal provisions that prohibit any conspiracy to deprive others of their civil rights, any conspiracy to defraud the federal government by interfering with its lawful functions (such as the certification of electoral votes), and corruptly obstructing an official proceeding (a theory that has been used, so far successfully, to prosecute the rioters themselves). These theories seem to be a better fit for the nonviolent machinations directed at persuading Mike Pence to refuse to certify the vote, but they are complicated by the ridiculous “legal” advice that Trump was evidently getting from sycophants acting as lawyers, which would provide a potent defense — outrageous as it may seem — absent some indication that Trump knew their arguments were gibberish.
Still, the best way to get to the bottom of the question of what Trump was doing and thinking in the lead-up to January 6: Conduct an actual criminal investigation.
By early December of last year, Trump’s inchoate rage at losing had gelled into a plan to overturn the results. Around that time, Trump and Meadows directly lobbied state lawmakers to disregard the will of voters. Trump was joined by two lawyers who communicated with him at this time: Jeffrey Clark, a senior official at the Justice Department at the time, and John Eastman, a law professor, dangerous crank, and serial liar. Working in coordination with Trump, Clark tried to get acting attorney general Jeffrey Rosen and acting deputy attorney general Richard Donoghue to send letters to officials in Georgia and other contested states to get them to appoint different slates of electors on the pretext that fraud invalidated election results that favored Biden. When that did not work, Eastman came up with a pseudo-legal theory to prevent the certification of Biden electors on January 6 either by simply declaring Trump the winner or Pence refusing to accept those electors. Pence ultimately rejected Eastman’s proposal.
Meanwhile, Trump was getting increasingly angry about Georgia, and on January 2, he called Raffensperger. Along with Meadows and a Republican lawyer named Cleta Mitchell, he pressed Raffensperger to use a grab bag of false claims of voter fraud in the Democratic stronghold of Fulton County to throw the state’s election to him. (The secretary of state had already allowed three recounts to prove there was no such fraud.) For an hour, Raffensperger held firm as Trump grew frustrated. “I just want to find 11,780 votes, which is one more than we have,” Trump told the man in charge of administering the state’s election. Trump also complained about “your Never Trumper U.S. Attorney,” Byung Pak in Atlanta, who refused to open election-fraud investigations about Fulton County that Trump could use to discredit the results in the state. Two days later, after being told that Trump was about to fire him, Pak resigned.
The call was made public the day after it took place, on January 3, by the Washington Post, which later posted the full audio. In a sane world, prosecutors in the U.S. Attorney’s office in Washington, D.C., the U.S. Attorney’s office in Atlanta, the public-corruption unit in D.C., or all of the above, would have jumped on the case. We do not know for sure what happened in these offices at the time — a question that may be encompassed in an ongoing internal review — but once Garland took office in early March, the department should have designated a team of lawyers and FBI agents to open an investigation. It could have involved, just to start, interviews with officials in Georgia and efforts to gather internal White House documents concerning the call. Some have suggested that because he was appointed by Biden and would be investigating Biden’s former opponent, Garland has a conflict that would require his recusal, which is questionable, but if necessary, he could have appointed a special counsel to oversee the inquiry.
Either way, there was a very solid legal basis to support an investigation. The civil-rights-conspiracy statute has been used for decades to prosecute federal election fraud, as the Justice Department’s election-crime handbook for prosecutors notes, including efforts at “rendering false tabulations of votes.” It is a felony subject to ten years in prison. A more specific federal election-fraud statute makes it a crime to attempt “to deprive or defraud the residents of a State of a fair and impartially conducted election process” through the “tabulation of ballots that are known by the person to be materially false, fictitious or fraudulent” under state law. Unlike most criminal statutes, the law requires the government to prove that the offender was aware they were doing something unlawful.
And as with so many of Trump’s misdeeds, the question seems to boil down to one of what was in his mind, but intent in white-collar cases is often established through circumstantial evidence. That is, for instance, largely how the government is prosecuting Elizabeth Holmes — by marshaling evidence that she knew the truth when she was saying things that were false. It is rare to have an admission from a defendant that they have knowingly lied or tried to get someone else to lie.
Revisiting the Trump-Raffensperger call after a year, it is striking to see someone tell Trump straightforwardly that he is wrong — that the claims he is making about election fraud in Georgia, which he cycles through as Raffensperger systematically bats them down, are simply not true. Trump is undeterred. Did he know? That is the central question, but prosecutors could pursue it in many ways: by interviewing the people who communicated directly with Trump at the time, including people in the White House, in the campaign, and in state legislatures; by reviewing documents that were provided to Trump, including briefing papers and talking points; and by interviewing more peripheral contacts in order to assemble a comprehensive record of the information that Trump was actually receiving.
Take, for instance, some of the information that was disclosed in October in an interim report from the Senate Judiciary Committee. It details Rosen and Donoghue’s flailing and buffoonish efforts to resist Trump’s entreaties to open election-fraud investigations. In a series of calls and meetings in late December and early January, Rosen and Donoghue, to their modest credit, told Trump they were looking into all of his crackpot theories and apparently declined to endorse them. (This was not entirely altruistic: Doing so likely would have ended their careers in serious legal circles if Trump’s efforts failed, as they ultimately did.) But somehow they did not tell Trump that the theories he purported to believe had either already been disproven or were transparent nonsense.
Still, according to notes of one call, Trump at one point told them to “just say the election was corrupt and leave the rest to me and the Republican Congressmen.” That call took place on December 27, about one week before Trump’s call with Raffensperger, and the notes are strong evidence that Trump knew his claims on the call with Raffensperger were false.
Congressional Democrats are clearly pursuing these threads, but most serious observers doubt that Trump or those within his close orbit are the subject of an active criminal investigation by the Justice Department — focused on the specific events of January 6, the Raffensperger call, or the broader campaign in the weeks leading up to and including January 6. Adam Schiff, a member of the January 6 committee, spoke for many people when he said he “vehemently” disagreed with the Justice Department’s apparent inaction, citing the Raffensperger call in particular. It seems safe to assume that if Schiff thought there were a serious criminal investigation of any sort involving Trump, he would not have spoken so pointedly.
Indeed, there is good reason to believe that a criminal investigation focused on Trump and those in his orbit would have already spilled over into public view. For one thing, it is risky for criminal investigators to let all of these overlapping investigations go forward without any apparent intervention to prevent interviews with people who are also witnesses in the criminal inquiry, since they create the risk of inconsistent statements. Also, people who receive grand-jury subpoenas or who voluntarily sit for interviews in criminal investigations (including under so-called queen-for-a-day agreements) are generally free to tell anyone they want, and defense lawyers can selectively disclose this information to journalists in order to generate media coverage that is favorable to their clients. Trump and those closest to him have also been particularly effective at waging war in the media to politicize investigations that appear to be closing in, as we saw throughout the Mueller investigation, and to significantly complicate investigators’ work.
A small number of dissenters on this issue on the left, who have faulted Schiff and others for their rhetoric about the urgent need for a criminal investigation into Trump’s conduct, have offered a series of pseudo-savvy rejoinders that generally run the gamut from trivially correct to specious. Some have questioned the need for an investigation on the theory that the publicly available facts do not establish that Trump committed a crime — arguments that miss the point of conducting a criminal investigation in the first place, which is to uncover and consider new facts when there is a meaningful reason to believe that a crime occurred. Others have noted that an investigation might have been kept secret so far, which is true but hardly something to bank on, or that an investigation focused on Trump could also emerge from evidence gathered in another active case or investigation, but that is far from clear and also needlessly risky, particularly if you believe a sufficient predicate already exists.
Perhaps the government is climbing from the lowest to the highest level of wrongdoings, as is usually the case in large criminal investigations, and the Justice Department may eventually get Trump in its investigative crosshairs through the hundreds of prosecutions related to January 6, particularly as prosecutors work their way up the hierarchy of organizers. This bottom-up investigative strategy is certainly the classic approach when you have limitless time and are short on evidence on the main figures involved, but it is not an unbreakable rule of investigations, as I can attest from my own, modest experience. (I suspect this is part of the reason that experienced organized-crime prosecutors have been sounding the alarm, perhaps realizing they would not have sat idly by if the FBI happened to catch a mob boss on a wiretap.) It is also far from clear, for instance, that you need to understand everything leading up to January 6 in order to fully investigate (and possibly prosecute) Trump for something as discrete as the Raffensperger call.
Some people doubt that Trump could ever be convicted of a crime related to the election, particularly since the combined efforts of Trump, the Republican Party, and conservative media have managed to convince nearly 60 percent of Republicans that the election was stolen. As a legal matter, however, the most sensible venue would likely be Washington, D.C., and although prosecutors cannot and should not forum-shop for this reason, it is a heavily Democratic jurisdiction. Regardless, it would be unwise to presume that a compelling case could not persuade hard-core Trump supporters — one of whom, for instance, was on the jury that convicted Trump’s ex–campaign chairman Paul Manafort — or to write off the deterrent effect of a prosecution that might still make future presidents and advisers think twice before engaging in serious misconduct.
If there is not already an ongoing criminal investigation with Trump currently and squarely within its remit, it may very well be too late for all practical purposes, even if the House select committee makes criminal referrals to the department as it completes its work — a possibility that Representative Liz Cheney recently and pointedly reaffirmed. In November, the Democrats are widely expected to lose at least the House, at which point, if the committee’s work has not concluded by then, Republicans in January 2023 will presumably disband it. They would also make any criminal investigation as difficult as possible, both through media appearances and oversight hearings, and if Republicans manage to take back the Senate, we can expect the same from them. We have already gotten an early taste of what that might look like, and one thing that even prominent defenders of Garland concede is that he has not been effective at defending the department’s work in the political arena.
And, of course, Trump remains the elephant in the room. If at any point he declares his candidacy for 2024, that would vastly complicate any criminal investigation involving him even peripherally. Before Biden took office, he expressed his discomfort with the prospect of conducting federal investigations that directly concern Trump — on the dubious theory that it would be too politically divisive — and Garland appears to share those concerns, so the idea that the Garland DOJ would criminally investigate Trump while he is actively running for office, much less seriously consider charging him, is hard to envision.
If the Justice Department has not begun a criminal investigation focused on at least Trump’s conduct on the Raffensperger call, it represents an enormous failure on the part of Garland and the department. The ongoing criminal investigation in Fulton County is no substitute: It is far from clear, for instance, that the office could secure access to potentially crucial evidence from within the White House or, more generally, that it has the institutional capacity to pursue someone who has proved elusive to well-resourced investigators elsewhere. It also sets a precedent that has not received the attention it deserves — namely, that local prosecutors are free to criminally investigate former presidents, even when it is clear that the underlying conduct at issue would also be illegal under federal law and that the Justice Department, a nationally representative prosecutorial body, could investigate it.
Meanwhile, our country’s long history of elite political impunity would continue unabated, and the Justice Department’s failure would incentivize even more high-level government misconduct in the future, both related to election tampering and otherwise. As for the next effort to subvert the outcome of a presidential election, that is more likely to look like the Raffensperger call — with the assistance of more pliant state Republicans — than the violence on January 6.
At some point, perhaps in ways that we cannot fully envision, and sooner rather than later, the country will pay the price for this dereliction of duty.
