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Analysis

After January 6 hearings, will US attorney general seek to prosecute Trump?

Merrick Garland has reputation for being cautious and scrupulously fair, leading to speculation he may appoint a special prosecutor to avoid perception of conflict of interest

A video of former US president Donald Trump speaking is displayed as the House select committee investigating the January 6 attack on the US Capitol continues to reveal its findings of a year-long investigation, at the Capitol in Washington, June 13, 2022.  (Mandel Ngan/Pool via AP)
A video of former US president Donald Trump speaking is displayed as the House select committee investigating the January 6 attack on the US Capitol continues to reveal its findings of a year-long investigation, at the Capitol in Washington, June 13, 2022. (Mandel Ngan/Pool via AP)

WASHINGTON (AFP) — Should Donald Trump be prosecuted for his efforts to overturn the results of the 2020 US election?

The question, laden with consequences, hangs over Washington following the conclusion of a series of hearings by the House panel probing the attack on the US Capitol.

And with the 76-year-old Trump hinting at a new White House run in 2024, it has taken on added urgency.

The weighty decision to potentially bring charges against the former president rests essentially with one man: Attorney General Merrick Garland.

Here is a look at some of the possible charges — and political fallout — should the 69-year-old Garland pursue an indictment of Trump:

The potential charges

During eight televised public hearings, the House committee presented a roadmap for the head of the Justice Department to potentially follow.

Trump knew he lost the election — his advisors told him so and his legal challenges went nowhere — but he continued to insist it was “stolen” by Democrat Joe Biden.

Then-US president Donald Trump arrives to speak during a rally protesting the electoral college certification of Joe Biden as president in Washington, January 6, 2021. (AP Photo/Jacquelyn Martin, File)

Trump pressured election officials in Georgia to “find” the votes he needed to win and tried to strongarm then-US vice president Mike Pence into not certifying the election results at the January 6 meeting of Congress.

Trump summoned his supporters to Washington, telling them in a fiery speech near the White House to “fight like hell.”

He then sat back for three hours and watched on TV as his loyal backers violently attacked the Capitol in a bid to block congressional certification of Biden’s victory.

As for specific crimes, legal analysts said that Trump could face at least two charges: “conspiracy to defraud the United States” for seeking to overturn the election results and “obstruction of an official proceeding” for the Capitol attack.

Obstruction of an official proceeding has been the charge most often used against the hundreds of Trump supporters arrested for breaching the Capitol.

Insurrectionists loyal to then US president Donald Trump try to break through a police barrier, January 6, 2021, at the Capitol in Washington. (Julio Cortez/AP)

The political fallout

Besides the legal ramifications, an unprecedented prosecution of a former chief executive would likely cause a political earthquake in a volatile country already starkly divided along partisan Democratic and Republican lines.

“Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover,” said Jack Goldsmith, who served as an assistant attorney general in the George W. Bush administration.

“It would be seen by many as politicized retribution,” Goldsmith said in a New York Times op-ed, threatening to “further inflame our already blazing partisan acrimony.”

Rich Lowry, editor of the conservative National Review, said prosecuting the former president would be a “catastrophic misstep by Trump’s enemies” that could even wind up giving him a boost politically.

“Our institutions aren’t in robust health and are ill-equipped to withstand the intense turbulence that would result from prosecuting the political champion of millions of people,” Lowry wrote in Politico. “The case would presumably drag on for years.”

Laurence Tribe, a Harvard law professor, argued that not holding Trump accountable would be equally harmful.

“I certainly recognize that indicting a former president would generate lots of social heat, perhaps violence,” Tribe said. “But not indicting him would invite another violent insurrection.”

In this January 6, 2021, photo, violent insurrectionists loyal to President Donald Trump scale the west wall of the US Capitol in Washington, DC. (AP Photo/Jose Luis Magana, File)

The attorney general

Garland, the attorney general, has been asked frequently about his intentions but has been careful not to tip his hand.

Attorney General Merrick Garland testifies during a Senate Judiciary Committee hearing examining the Department of Justice on Capitol Hill in Washington, Wednesday, October 27, 2021. (Tom Brenner/Pool via AP)

He said recently the January 6 probe is the “most important” Justice Department investigation ever and it has to “get this right.”

“We have to hold accountable every person who is criminally responsible for trying to overturn a legitimate election,” Garland said, emphasizing that “no person is above the law.”

A former prosecutor and judge, Garland was appointed attorney general by Biden after being famously deprived of a seat on the Supreme Court by the Republican-controlled Senate in 2016.

In this January 6, 2021 photo rioters loyal to President Donald Trump storm the US Capitol in Washington. (AP/John Minchillo)

Garland has a reputation for being cautious and scrupulously fair, leading to speculation he may appoint a special prosecutor to handle Trump’s legal case to avoid any perception of conflict of interest.

Tribe, Garland’s former professor at Harvard, said he believes the attorney general will ultimately indict Trump.

“He said he’d go to the top if that’s where the evidence points and that’s certainly where it’s pointing now,” Tribe told CNN. “I do think the odds are he will be indicted.”

The Trump defense

Trump, who was impeached by the House for the January 6 insurrection but acquitted by the Senate, has spent weeks railing against what he calls a partisan “Kangaroo Court.”

In a 12-page statement released in mid-June, Trump said the House committee was “making a mockery of justice.”

“They have refused to allow their political opponents to participate in this process, and have excluded all exculpatory witnesses, and anyone who so easily points out the flaws in their story,” he said.

In this January 6, 2021 file photo, supporters of then-US president Donald Trump, including Jacob Chansley, right with fur hat, are confronted by US Capitol Police officers outside the Senate Chamber inside the Capitol in Washington. (AP Photo/Manuel Balce Ceneta, File)

“Democrats created the narrative of January 6th to detract from the much larger and more important truth that the 2020 Election was Rigged and Stolen,” he said.

William Banks, a law professor at Syracuse University, said prosecutors would be required to prove not only that Trump was “guilty beyond a reasonable doubt, but that he had an intention to violate the law.”

“Not just that he obstructed the congressional proceeding by making it virtually impossible to count the votes and certify the election, but that’s what he intended to do,” Banks said.

Trump’s lawyers, he said, could counter that narrative by casting him as a “patriot who truly believed that the election had been stolen from him and he was trying to save the country.”

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