Six years into the Trump era in American politics, many of his critics still believe they can find a silver bullet to end it. On Wednesday, the House committee on January 6 filed a brief in a federal court in California that, depending on your interpretation, was either an attempt to compel documents from a reluctant witness or an omen of Donald Trump’s imminent imprisonment.
Many of Trump’s critics have once again leapt to believe that opaque legal developments might vanquish the former president, a familiar pattern since Robert Mueller became a household name in 2017. This hope not only attaches too much importance to specific investigations, but also misunderstands the Trump dilemma. Just as with the Trumpist obsession with John Durham, the proponents have given up on persuading their political opponents and are searching for an outside solution. But Trump’s worst offenses—including the Big Lie, the open attempt to steal the election, and earlier sins such as his attempted blackmail of Ukraine—are not (or are not primarily) crimes. The hope that a prosecution can solve a political problem is a false hope.
[David A. Graham: The paperwork coup]
The House committee wants to make John Eastman, a legal architect of Trump’s paperwork coup, hand over documents that he says are shielded by attorney-client privilege, and the brief is an explanation of why the committee’s lawyers believe that that privilege should not apply. But it has received more attention than the average incremental legal filing because that explanation rests on the idea that the committee “has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States” as well as obstruction of justice.
Such a statement is interesting—but it’s not clear that it’s a big deal. Despite headlines that say things like “Jan. 6 Committee Lays Out Potential Criminal Charges Against Trump,” the path from here to an actual criminal charge against Trump—much less a conviction—is long and perhaps imaginary. First, the committee has to finish its work. Next, it would have to issue a criminal referral to the Justice Department, because the committee itself has no charging power. Then Attorney General Merrick Garland, who has remained aloof to the possibility of targeting the former president and his administration, would have to approve pursuing charges. Then prosecutors would have to actually convict Trump in court, by a jury’s unanimous assent. Even if all of this happened, it would take months if not years.
The moment is reminiscent of the febrile days of Special Counsel Robert Mueller’s investigation, when anti-Trump commentators engaged in elaborate exegesis of this interview or that filing, all of which was leading, they insisted, to a catastrophic conclusion for the president. Instead, of course, Mueller concluded his work without charging the president. Several associates ended up being charged or convicted (though some were pardoned by Trump), but the closest Mueller came to charging Trump was a timid though clear implication that he obstructed justice.
The resolution was a painful letdown for many people. Yet even though the deus ex Mueller failed, some of them continue to look for a silver bullet from some crusading prosecutor. The indications are not much better elsewhere. Last week, two attorneys who were leading the investigation by the Manhattan District Attorney’s Office into Trump’s business practices resigned, reportedly because their boss, Alvin Bragg, was reluctant to indict the former president. New York Attorney General Letitia James continues to investigate Trump, which seems to be a source of frustration for him, but that is a civil, rather than criminal, probe.
In Fulton County, Georgia, District Attorney Fani Willis is looking into Trump’s election interference in 2020. Less is known about Willis’s case, and its apparently narrow scope might mean that it’s more likely to result in charges than the others, but a grand jury won’t be seated until May—and, again, that’s a long way from a conviction.
[David A. Graham: America is not ready for Trump’s second term]
Let’s imagine, for the sake of argument, that the January 6 committee made a referral, the Justice Department charged Trump, and he was convicted on something vague such as a conspiracy or fraud charge. Then what? Even a felony conviction would not prevent Trump from running for president again, as he seems likely to do. The impression among his supporters of a politicized prosecution would only rally support to him. (An acquittal might be even worse, weakening the rule of law while making Trump into a seemingly invincible hero.)
Even with a conviction, the political problem of Trump would remain: A significant portion of the American public continues to support him, and he stands a good chance of running and winning in 2024, even without his allies’ work to subvert the election system—though that can’t hurt his odds. The only way to prevent Trump from running was through the impeachment process. The House did impeach him, and 57 Senators voted to convict, but it was short of the supermajority needed. The current committee was a fallback option for congressional Democrats after impeachment failed.
The work House members are doing is not useless. Though nothing they have made public so far radically changes our understanding of Trump’s attempt to overturn the election, they have uncovered valuable new facts about the depth of the White House’s involvement in chicanery nationwide, as well as disturbing revelations such as that Trump considered having the Defense Department seize voting machines.
The potential value of this is not that it ends with Trump behind bars, but that it provides a more complete picture of Trump’s attempted coup, which might aid the political case against him. The committee has much work to do, but, so far, little evidence exists that public opinion is shifting against Trump. If anything, the opposite is true.
The irony is that a better answer than praying for prosecution is already available. Even after Mueller’s probe went nowhere, Trump’s first impeachment fizzled, and any number of other criminal cases faded away, Trump’s opponents defeated him in the 2020 election. If there is any solution to the persistent threat of Trump, that will be political too.