Experts debate whether Trump will face legal consequences for Jan. 6

  • The first eight panel hearings on Jan. 6 focused on Trump’s efforts to nullify the 2020 election.
  • But legal experts are mixed about whether the evidence will lead to criminal charges against Trump.
  • A recent survey suggests Americans are also split on whether they think Trump should be indicted.

The House Select Committee investigating the Jan. 6 Capitol attack presented extensive evidence pointing to former President Donald Trump’s efforts to nullify the 2020 election. In eight public hearings over six weeks, a multitude of witnesses offered explosive testimony that gripped the nation and put Trump on edge.

The committee’s investigation serves several purposes – experts have cited responsibility for the insurgency; a strengthening of the country’s commitment to democracy; and the creation of a vital historical record all as plausible functions.

But the average American, oblivious to DC legacy issues, is probably wondering one thing: Could Trump face criminal charges at the committee’s conclusion?

This is a tricky question and one on which the experts are mixed.

The panel, itself, has yet to decide whether it will issue a criminal referral to the Justice Department. The act has no concrete legal effect but serves as a symbolic measure to inform the agency of the possibility of criminal behavior uncovered by the investigation. Earlier this month, Rep. Liz Cheney, who serves as the committee’s vice chair, said the panel could potentially make several criminal referrals, including one against Trump.

But Matthew Schmidt, associate professor of national security and political science at the University of New Haven, told Insider he thinks the likelihood of Trump facing legal consequences is “virtually zero.”

“First, because the legal standard to be able to convict him is too high and too unprecedented to be a sure thing,” he said. “Second, the political risk of even trying to convict a former president is too high.”

Trump’s frequent teasing in a possible presidential election in 2024 adds another wrinkle to the possible charges, Schmidt said. The former president recently told his allies that part of the allure of holding the nation’s top spot again would be the legal immunity he offers, according to a Rolling Stone Report released earlier this month.

“Trump showing up again effectively rules out any lawsuits,” Schmidt said.

Asher Hildebrand, associate professor of practice at Duke University’s Sanford School of Public Policy, takes a different view.

“The evidence of Trump’s criminal responsibility provided by the Committee has been so compelling that it would be shocking, in a sense, if the Justice Department did not act,” he told Insider. “But at the end of the day, the Justice Department pursuing criminal charges against a former president is as much a political decision as it is a legal one, and it remains to be seen whether it’s a decision Attorney General Garland will be willing to make.”

Americans themselves also appear split on whether they think the former president should face criminal charges for his role in the attack. A NPR/PBS NewsHour/Marist National Poll earlier this week revealed that about 50% of people think Trump should face legal consequences. But only 28% of those polled said they thought it was the most likely outcome.

The choice of whether to indict Trump will ultimately come down to Attorney General Merrick Garland who will have to weigh the optics of indicting a former president in a politically polarized country, said Robert Weisberg, a criminal law professor at Stanford University. But even if Garland concludes he has a potentially winnable case, he could still drop the charges, thanks to prosecutorial discretion.

“Perhaps people will think he shouldn’t make this decision, but he has the legal power not sue even if he has a legal basis to sue,” he added.

The Justice Department is not the only law enforcement authority currently investigating Trump, and the former president could still face criminal charges from a list of other locations, Hildebrand pointed out.

“But a federal indictment would be an especially powerful deterrent not only against any attempts by Trump to overturn future elections, but also against attempts by other elected officials to overturn the will of voters,” he said.

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