For Joe Biden’s administration, through the Department of Justice, to be able to charge and prosecute President Donald Trump for anything connected to the Jan. 6, 2021, riot at the Capitol, their evidence must be more than “plausible.”
“It must be unassailable,” explains constitutional expert and law professor Jonathan Turley.
He wrote in an online column that that simply hasn’t happened yet, despite multiple public “hearings” held by Nancy Pelosi’s partisan committee assigned to investigate the events of that day.
It is partisan because Pelosi rejected nominees from the minority GOP for the committee, and instead recruited two anti-Trump members of the GOP who have aligned perfectly with the Democrat agenda against him. Further, her “hearings” have allowed no defense questions or defense testimony.
Turley explained that key to the entire issue is that, “Trump maintains he believed the election was stolen and he had a legal basis to challenge its certification. Democrats in Congress (including some members of the Jan. 6 committee) have challenged certifications of prior elections, including Trump’s 2016 victory; past election controversies also involved rival slates of electors being presented to Congress. And Trump had a team of lawyers advising him these were valid claims.”
He continued, “Democrats have tried to undermine such a defense by referring to Trump’s personal lawyers as ‘Team Crazy’ and noting that not only White House counsel but most legal experts disagreed with their analysis. They insist no one would believe these claims were credible. The committee’s case, however, was built without a modicum of balance in the presentation of evidence. Even in quoting Trump’s much-condemned rally speech, the committee routinely edited out his line that ‘I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.'”
Turley explained the evidence for any charge the Democrats may want to pursue has to be something more than they just don’t think anyone could disagree with their perspective.
“Notably, a new Harvard study has found that most people who went to the Capitol on January 6th did so in loyalty to Trump rather than to engage in insurrection. Millions continue to believe that the election was stolen,” he explained.
A conviction might be obtained because, after all, more than 90% of Washington, D.C., residents voted for Biden. But it would be another matter entirely for the same case to be upheld on appeal.
Turley noted that Trump sent CNN a 282-page letter this week citing dozens of times when the declining network accused Trump of lying about vote fraud.
The letter points out that Trump “subjectively believes that the results of the 2020 presidential election turned on fraudulent voting activity in several key states.”
“The line does not make a case for civil defamation — but it could offer a criminal defense if Attorney General Merrick Garland charges Trump as part of an ongoing grand jury investigation,” Turley said.
“CNN’s reporting in some stories that Trump lied about election fraud was clearly protected opinion. In other reports, it was based on the views of experts or sources. In either case, a defamation case cannot be maintained on the ‘I believed it to be true’ claim. The question is whether CNN knew it to be false or didn’t care if it was false or true,” he said.
But those arguments could have greater impact in a criminal prosecution, he said.
“Some of us continue to question the basis for criminal charges against Trump on the current evidence. The House Jan. 6 committee promised to present compelling evidence to support criminal charges, but it has not yet presented that case after eight hearings. Even some Democratic figures, including former prosecutor and former Sen. Heidi Heitkamp (D-N.D.), do not believe a strong case has been made for an indictment,” Turley wrote.
And he pointed out that comes from someone who in the past has advocated for charging former presidents, like Nixon and Carter.
“There has been a recognition that such a prosecution — even a clear case like Clinton’s — could divide the nation at a time when it needs to move forward,” he said. “I have always disagreed with that view, believing that if a president commits a crime, prosecution strengthens the nation by showing its commitment to the rule of law.”
But he said if a former president is to be charged, the case must be absolute – and the evidence against Trump is nothing like that.
“When an administration prosecutes a former (and possibly future) political opponent, even more can appear ‘awry,'” Turley wrote. “Even under the alternative showing, ‘willful’ does not include politically delusional or defiant defendants. Millions of Americans still believe there is evidence of election fraud.”
He said, “Prosecutors need more than simply repeating that it’s ‘inconceivable’ that Trump didn’t know he’d lost the election.”