There’s more than enough evidence to charge Trump with seditious conspiracy
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Former federal prosecutor Harry Litman, writing in the Los Angeles Times, suggests that there is a “gap” between the Jan. 6 evidence developed by the special House committee and a case of seditious conspiracy that will stand up in a court of law.
He argues that Attorney General Merrick Garland “would not take the unprecedented step of prosecuting a former president” unless a Trump satrap like Rudy Giuliani, Mark Meadows or Steve Bannon turned state’s evidence and were willing to testify that Trump was in on cooking up the whole plot.
Absent such testimony, Litman concludes, Garland will not indict Trump.
Seditious conspiracy is defined in the law as an unlawful agreement among and between two or more people to “oppose by force” the government’s authority or agreeing “by force to prevent, hinder or delay the execution of any law of the United States…” What happened on Jan. 6 fits the definition neatly. The conspirators don’t need to succeed in their plot. The essence of the crime is the agreement, and it can be punished by up to 20 years in jail.
Litman concedes that it is theoretically possible to prove seditious conspiracy beyond a reasonable doubt based on the circumstantial evidence. The object of the conspiracy was to create a situation where, despite the vote, Trump would remain in power, and the means to accomplish the objective was the use of force. But Litman is confident that circumstantial evidence will not be enough to indict a former president, even if such evidence would be sufficient to convict you and me. Rubbish!
Conspiracies are rarely proved by direct evidence because conspirators plot their crimes in secret, not in the open. A conspiratorial agreement is not typically reduced to writing. It is inferred from acts, declarations and conduct. Initial determination that there is sufficient evidence of membership in the conspiracy is for the judge. A federal judge has already held in another case that “more likely than not” Trump engaged in criminal acts on Jan. 6.
Thus far, there is evidence that Trump knew that the insurrectionists were armed; that he summoned them to Washington; that his tweet of invitation said that Jan. 6 “will be wild”; that Rudy Giuliani told the mob: “Let’s have trial by combat”; and that Bannon, with whom Trump spoke twice a day, predicted “all hell is going to break loose tomorrow.” :
[Former President Trump spoke on the phone with his former White House adviser and political strategist Stephen Bannon at least twice the day before the Capitol attack, the select committee revealed on Tuesday.
After the first call on the morning of Jan. 5, 2021, which lasted 11 minutes, according to White House call logs, Bannon went on a right-wing talk show and predicted the next day would be eventful.
“All hell is going to break loose tomorrow,” Bannon said in a clip of his appearance that was played during Tuesday’s hearing. “It’s all converging, and now we’re on, as they say, the point of attack.” THE HILL ]
Lawyers understand that the statements of Giuliani and Bannon are “declarations in furtherance of the conspiracy” binding on Trump as though he had made the statements himself.
Some have suggested that Garland’s opportunity to investigate and indict Trump will peter out in the coming months. Trump has signaled he will announce for president in September, and it would smack of a political vendetta to have an attorney general appointed by Biden, who may also run, prosecute his political opponent. But Garland said emphatically just the other day that “No person is above the law in this country. I can’t say it any more clearly than that. There is nothing in the principles of prosecution and any other factors which prevent us from investigating anyone — anyone — who is criminally responsible for an attempt to undo a democratic election.”
The Daily News Flash
Such redoubtable legal authorities as Harvard Law Prof. Laurence Tribe and Nancy Gertner, a former federal judge and now also a Harvard Law professor, have said that Garland will and should indict Trump for a number of crimes including seditious conspiracy. As it happens, Tribe was Garland’s law professor.
“If Merrick Garland is awake, I think he is, if he’s as smart as I think he was as a student,” Tribe said, “he’s got to be about to indict.” Gertner said Trump should be indicted, stating that his fingerprints are on several plots including the insurrection.
Not all of Harvard Law School is in agreement. Prof. Jack Goldsmith, formerly an assistant attorney general office of legal counsel in the George W. Bush administration wrote in a recent New York Times op-ed that it’s a bad idea to indict Trump even if the evidence is there.
He notes that Justice Department charging guidelines require that “the national interest would be served by prosecuting.” Goldsmith insists that Trump’s trial would prevent national reconciliation, would be a “cataclysmic event from which the nation would not soon recover,” and says the ultimate resolution ought to be left to the next administration — which may be Republican, and which may even be headed by Trump.
But Goldsmith’s arguments about the national interest would apply with the same force if Trump murdered someone on Fifth Ave., which Trump bragged he could do with impunity.
So, according to Goldsmith, even if Garland does indict Trump, Trump may escape the hangman as he has so many times in the past. The next president could pardon him. The next attorney general may drop the case. Or, imagining the unthinkable, Trump may get to pardon himself.
Zirin is a former federal prosecutor in the Southern District of New York.