Will Donald Trump ever face charges for the January 6th riots?

Monday Musings!

To indict Donald Trump, or not indict Donald Trump, that is the question?

With the above nod to the bard William Shakespeare, allow me to draw your attention to today's NY Times and an article written by Jack Goldsmith, a former Assistant U.S. Attorney General under President George W. Bush, who has watched the bipartisan Congressional Committee's hearings into the January 6, 2021 MAGA riots and opines about what to expect in the near future.

In his piece, Goldsmith raises three points that Attorney General Merrick Garland must weigh before determining whether to indict former President Donald Trump for obstruction:

1. Whether A.G. Garland has the authority to indict? (Goldsmith says “yes”).

2. Whether the evidence is sufficient to convict Donald Trump? (Goldsmith concludes that “it depends”).

3. Whether a Trump indictment is in the best interest of the United States of America? (Still depends).

AG Merrick Garland

These questions, each profound, could determine the fate of the Republic—and I mean no hyperbole in this expression!

As to the first question, I concur with Mr. Goldsmith's assessment that A.G. Garland has the authority to indict under his own auspices, or to secure the appointment of an independent special counsel.

Now, one need not have graduated from law school to recognize that the smart play would be to appoint a special counsel, preferably one who is affiliated with neither the Democratic or Republican Party. 

If Garland keeps the case and farms it to one of his duly assigned Assistant A.G.'s or U.S. Attorney's, such a prosecution would never be considered legitimate by Republicans or independent voters who will conclude that the proceedings give the appearance of political retribution—no matter how damning the allegations are (or will be upon hearing the committee’s entire body of evidence). Such is why there’s a need for eyes that are not directly controlled by Garland—and ostensibly by Garland's boss—President Joe Biden.

As to the second question, from the testimony that I have heard from both former First Daughter Ivanka Trump and former A.G. Bill Barr, to the text messages transcripts that lay out Mr. Trump's refusal to concede that he had been soundly defeated (AND his "Pinky and the Brain-ish” plans to claim that the voting machines were tainted), not to mention my own real-time watching of that shameful rally that Trump led on January 6th while calling on his minions to march and “stop the steal,” it is clear that probable cause exists to charge Mr. Trump with the crimes of obstructing an official proceeding (the Jan. 6th vote certification) or conspiracy to defraud the United States (in working to overturn election results).

‘Big Brother was watching’…and shouting like Yosemite Sam on January 6th

But Ol’ Hobbs assures you that probable cause has never meant proof beyond a reasonable doubt, and while the evidence adduced so far against Trump seems insurmountable, there’s rarely a criminal case that doesn’t seem insurmountable at some point—until it is surmounted.

To my last point, I've long concluded that Mr. Trump has one arrow in his quiver that could help him in a January 6th related criminal trial, and that is whether he had the requisite “mens rea,” or “mindset/level of intent,” to be found guilty. If you listen carefully to the testimony from Bill Barr and other aides about the former president being unhinged after the election, including testimony that when he learned that the MAGA crowd had nooses and were chanting "hang (VP) Mike Pence” on January 6th, that Trump, channeling his inner Nero of Roman imperial antiquity, shouted for all to hear at the White House: "maybe the crowd is right!" 

😠

Yes, I know that it may sound farfetched to most rational people that Trump could prevail at trial, but a juror (or several) could decide that Trump didn't actually intend for mob violence that day and end up hung—or outright vote to acquit—depending upon the venue (where the trial will be held) and the jury pool (whether the jury is a politically mixed lot).

As to the third question, whether a Trump indictment is in the best interest of the United States, my logical side falls unequivocally on the side of "yes!" I believe that Mr. Trump's post-election behavior was more than just childish and temperamental—it was an immoral and brazen attempt to overturn a lawful election like America is some totalitarian regime—not a Democratic Republic!

But I also join former Assistant A.G. Jack Goldsmith in asking whether the potential costs of violence and disorder are worth the efforts it would take to indict, convict, and imprison the former president?

While some may consider the following conclusion to be nihilistic, I 'Hobbserve’ clearly: "yes—it is worth the potential of civil unrest and violence now, instead of appeasement and even greater civil unrest and violence later!"

You see, those right wing militias running around in the woods near your town haven't been buying weapons, ammo, and training all of these years for nothing; what they did and were willing to do for Trump in 2020 may pale in comparison to what they may be willing to do if their beloved hero is convicted and sentenced to a federal prison!

But I also note that the right wing militia members are still the minority in our country, and while there are millions of Trump supporters who stubbornly refuse to admit that their leader was morally and criminally wrong, most of those millions are NOT willing to give their lives in combat to save his life!

Still, if I had to wager, my gut tells me that Mr. Trump won't be indicted; while I reiterate that his acts were deplorable, immoral, and criminal, I have seen far too many politically powerful people walk way unscathed from their deplorable, immoral, or criminal acts to believe that this one, an immensely popular reality TV star at that, will be held accountable for his unlawful acts while in the Oval Office. 

Stay tuned...