US: Will Trump face criminal charges?

It was a fitting close to a blockbuster series of hearings: outtakes from former US President Donald Trump recording a video on January 7, 2021, where he refuses to utter the words "the election is over."

 Trump's recording was intended to be a salve for the country just one day after a mob stormed the Capitol and plunged the country into crisis. Instead, he refused to back down from the very falsehood that had spurred many in the mob to violence: that the 2020 election was rigged. 

Thursday's final public hearing before the summer break by the congressional committee investigating the riot focused on Trump's refusal to tell the mob of his supporters ransacking the Capitol on January 6 to go home. His refusal came despite numerous entreaties from his advisers and family, leading Republicans and even Fox News personalities. It was a key piece of the narrative that the committee members had set out to show from the very first hearing: that Trump and his closest aides knew the election wasn't stolen; that they actively tried to subvert the election result; and that Trump incited and encouraged the violent riot on January 6.

Committee members say the chain of responsibility leads all the way to Trump, and they wove together pieces of evidence to prove their case: from former Attorney General Bill Barr's unequivocal rejection of the ex-president's election fraud claims to revelations that Trump's team tried to put forward slates of fake electors in key battleground states; that the team intended to install allies at the Department of Justice; that Trump knew the crowd of his supporters on January 6 was armed and dangerous; that he remained silent for 187 minutes as the riot unfolded and members of Congress and the vice president fled the Capitol.

Do the hearings matter? 

But will the vivid details, the bombshell testimony and the previously unseen footage amount to anything? A congressional committee can investigate but carries no legal authority to press charges. That lies in the hands of the Department of Justice and the current attorney general, Merrick Garland.

Until now, the Department of Justice has arrested and pressed charges against nearly 900 rioters who attacked the Capitol on January 6. Prosecuting members of the White House, Trump's inner circle and even the former president himself will be a far more difficult task. 

Catherine J. Ross, a professor of law at the George Washington University Law School and author of the book "A Right to Lie?: Presidents, Other Liars, and the First Amendment," told DW the Department of Justice could probe charges including obstruction of a congressional proceeding (trying to stop the certification of the election result), seditious conspiracy (conspiring to overthrow or wage war against the US government) and conspiracy to defraud the United States (obstructing a lawful function of the government using deceit or dishonesty). 

"In the period between the Electoral College vote and January 6, Trump took a very large number of actions to try to overturn the results of the election and remain illegally in office. And at every juncture lawyers told him this is illegal or you cannot do that, so it doesn't matter what his motive was,” said Ross, who believes the body of evidence presented is robust enough to support criminal charges. 

"This is like saying I robbed a bank, but it was okay because I really needed money and I believed I should have some," she added.

The case against Trump

While it might be a clearer case for prosecutors to prove Trump's intent, observers note that it will be far more difficult to link his actions with the riot. And taking a former president to court is a wholly unprecedented step, making it all the more difficult for the DOJ to gauge whether successful legal action against Trump is even viable. 

"They have to have evidence that will stand up during cross-examination and that will prove criminal charges in our system. In the United States, beyond a reasonable doubt as the criminal standard is really quite demanding,” said William C. Banks, emeritus professor at the Syracuse University College of Law. "It's not a preponderance of the evidence; it's not more likely than not. It's beyond reasonable doubt. We give the accused every benefit in our system."

The political environment will prove to be another challenge. While the hearings have consistently drawn in a solid number of viewers — 17.7 million for Thursday's prime-time event — the majority of Republicans have tuned out. Leading Republican lawmakers have rejected the hearings' validity, branding them a witch hunt and "political theater." The former president himself has delivered angry rebukes and tirades on his social media network, Truth Social. 

In such a heated environment, seeking criminal charges against a former president — especially when he is gearing up to run for office again in 2024 — could be a particularly precarious undertaking for Attorney General Merrick Garland. 

"There's a question that (Garland) has to confront. If he should choose to indict former President Trump or someone in his inner circle, will he be perceived as being partial, as being politically motivated in his decision to seek an indictment of the former president of the United States?” said Banks. 

The hearings go on

All these factors will weigh heavily upon the Department of Justice and Garland. But the January 6th Committee is not done. Originally, it had planned six hearings to be wrapped up in June. But Republican Vice Chairwoman Liz Cheney stated in Thursday's hearing that the "dam has begun to break,” with new witnesses, testimony and evidence coming to light over the course of the hearings. 

If the committee can gather further significant evidence and convince key witnesses to come forward, the Department of Justice, which is carrying out its own investigation but watching the hearings closely, could choose to prosecute. 

There are hopes that high-ranking members of Trump's former inner circle who have previously refused to testify might reconsider — just as former White House Counsel Pat Cipollone chose to participate in the hearings after damning testimony in which his name cropped up several times. 

The next batch of hearings is now scheduled for September, just two months before momentous midterm elections. 

Edited by: Timothy Jones