Editor’s Note: Jennifer Rodgers is a former federal prosecutor, adjunct professor of clinical law at NYU School of Law, lecturer-in-law at Columbia Law School and a CNN legal analyst. The opinions expressed here are her own. Read more opinion at CNN.
The more information that emerges about former President Donald Trump’s efforts to remain in power despite losing the 2020 election, the more difficult it becomes for the Department of Justice to avoid investigating the wide array of potentially criminal conduct by the former President between the election and January 6.
The Senate Judiciary Committee’s recent blockbuster report added significant details to what was previously known about how Trump tried to subvert DOJ authority by attempting to turn what is meant to be an independent law enforcement agency into a co-conspirator.
Some of the report’s damning facts were already known, such as: following the election, Trump pressured then-Acting Attorney General Jeffrey Rosen to throw DOJ’s weight behind baseless election fraud claims, in large part by using theories already rejected in the courts. Previous reporting also revealed the former President’s threats to replace Rosen with Jeffrey Clark, an underling supportive of Trump’s election conspiracy theories – only backing off when numerous high-ranking officials said they would resign en masse in response.
But what the Committee’s report – with the benefit of additional documents and the testimony of Rosen and others – makes clear is Trump’s actions and those of others, like Clark, were even more manipulative, persistent and pointed in pressing debunked fraud claims to justify their effort to overturn the election. This disturbing knowledge comes at a moment when the Committee’s work is still underway, as they await documents and testimony from others, including former Trump allies who are trying their hardest to evade the Committee’s subpoenas.
Any criminal referrals the Committee may make to the DOJ will occur when the investigation is complete.
Of course, DOJ doesn’t need a referral to start investigating, and there is no benefit to waiting; cases only grow weaker over time and memories fade. Typically, a criminal investigation is also considered more serious than, and takes precedence over, a Congressional probe. So as the revelations pile up, the question many have asked for months comes to the fore again: will the DOJ investigate these events and possibly file charges against anyone?
There is no lack of possible crimes to investigate here. Interfering with or attempting to interfere with a federal election is a crime, as is making false statements to federal officials or interfering with the operations of Congress.
The standard for initiating a criminal investigation is a modest one, requiring only articulable facts reasonably indicating a crime has occurred; at this point, more than enough evidence of each of these crimes has been publicly revealed to justify a full federal investigation.
Of course, it’s possible an investigation is proceeding; usually, criminal investigations are not announced publicly. Law enforcement works out of the public gaze, in part to allow for the effective gathering of evidence that, in many cases, is subject to strict grand jury secrecy rules. In this instance, however, given the publicity surrounding the events in question and the ongoing Congressional investigation, a secret DOJ investigation being carried out at the present time appears unlikely.
Make no mistake: prosecuting the former President would be a significant challenge for any prosecutor: the burden of proof in criminal cases is high; Trump has a knack for trying to make things happen without being explicit about what he is asking for, making proof of intent difficult; and the former President and his supporters would likely claim (wrongly) the prosecution is politically motivated. But none of these obstacles is a barrier to, at minimum, investigating egregious behavior.
Some reluctance is understandable. Attorney General Merrick Garland and his colleagues have lots of work to do to restore the integrity of the Department after the abuses of the Trump years, and to advance their priorities in various important areas, like strengthening voting rights and investigating civil rights abuses by police.
There are legitimate worries a case of this historic magnitude and complexity could overshadow everything else DOJ does, not to mention concerns about the unknown political ramifications of bringing such charges. The Biden White House also seems to have little appetite for criminal charges against Trump, although President Joe Biden himself has pledged in the past not to interfere with DOJ’s criminal decision-making.
So far, Garland has appeared to defer to other investigations instead of building his own case, assisting Congress’s inquiry by providing DOJ documents and declining to assert executive privilege over communications involving the former President.
Meanwhile, Trump’s conduct in cajoling Georgia’s election officials to “find” him just enough extra votes to overtake Biden has prompted a Fulton County District Attorney’s investigation, which could theoretically lead to charges for at least that part of Trump’s machinations.
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But the federal courts, ultimately, remain the best place to prosecute an overarching scheme – involving an attack on Congress – to undermine the results of a free and fair election across multiple states.
As a nation, are we really willing to accept that a former President, who pledged to faithfully execute our laws but instead tried to fraudulently steal an election to stay in power, walks away without even a comprehensive federal criminal investigation of his conduct? The lack of transparent, unequivocal action by DOJ in defending our democracy from an attack of this magnitude lets us all down.