Did the January 6 Committee’s public hearings do the trick? According to an ABC/Ipsos poll, it would appear to be the case, as almost 60% of those polled believe Trump committed crimes.
In the poll, which was conducted by Ipsos in partnership with ABC News using Ipsos’ KnowledgePanel, 58% of Americans think Trump should be charged with a crime for his role in the riot. That’s up slightly from late April, before the hearings began, when an ABC News/Washington Post poll found that 52% of Americans thought the former president should be charged.
Of course, many held that view beforehand, both because of what was already publicly known and because of their inclination to believe that just because Trump was despicable, he deserved to be prosecuted, much as those who adored Trump refused to believe he could do wrong.
The poll divides along party lines, with 91% of Democrats thinking Trump should be charged with a crime compared to 19% of Republicans. On whether Trump bears a “great deal” or a “good amount” of responsibility for the attack, 91% of Democrats and 21% of Republicans say he does.
Among self-described independents, 62% think Trump should be charged and 61% think he bears a “great deal” or a “good amount” of responsibility.
To be clear, I’m of the view that Trump bears a “great deal” of responsibility. But whether he should be charged with a crime, which has become the new dinner party question exacerbated by the 1/6 Committee’s hearings, raises very different questions.
These will be hard conclusions for Mr. Garland to reach. He would have to believe that the department could probably convince a unanimous jury that Mr. Trump committed crimes beyond a reasonable doubt. Mr. Garland cannot rest this judgment on the Jan. 6 committee’s one-sided factual recitations or legal contentions. Nor can he put much stock in a ruling by a federal judge who, in a civil subpoena dispute — a process that requires a significantly lower standard of proof to prevail than in a criminal trial — concluded that Mr. Trump (who was not represented) “more likely than not” committed a crime related to Jan. 6.
The crux of the confusion has come from both sides of the table. On the one side, the prosecutorial side, progressive New York County district attorney Alvin Bragg, has apparently given up on his office’s efforts to prosecute Trump. The civil action by New York Attorney General Letitia James is ongoing, but is neither criminal nor moving forward with much deliberate speed.
And then there’s the United States Attorney General, Merrick Garland, who was the darling of the left when he was outrageously denied a hearing after President Obama nominated him to the Supreme Court, but isn’t turning out to be the firebrand prosecutor they thought they loved.
At the same time, the jury in the “court of public opinion” had re-convicted Trump, having already convicted him a million times over since his daily offenses began even before his term of office. Of course, fomenting an insurrection is of a scale and nature apart from his daily offenses, and put on display for all to see.
But now that Judge Carter in California found it more likely than not that Trump committed crimes and ordered John Eastman to disclose his conspiratorial emails to the committee, and the committee has put on its evidence, it’s not as if nearly 60% of the public has reached this conclusion out of pure Trump Derangement Syndrome. There is evidence. Lots of evidence. Evidence from from the likes of Bill Barr, Ivanka the Daughter, Mike Pence’s counsel and White House and campaign staffers. There is a ton of evidence that Trump is either a liar, a moron, delusional or a combination thereof.
But what there has yet to be is due process. Trump’s representative, whether drippy Rudy or someone competent, has not yet crossed a witness. Trump has yet to present his evidence. Trump has not yet testified on his own behalf, even if that goes better than any rational person would anticipate. At this point, the prosecution has put on its case without the defense having an opportunity to challenge it.
Jack Goldsmith realizes this.
Instead, Mr. Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding administered by an independent judge, where Mr. Trump’s lawyers will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.
But what, you ask, could Trump possibly offer in his defense?
Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.
Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.
Despite his attorney general informing him that his belief was “bullshit,” he had his lawyer for four seasons telling him otherwise. Can he choose to believe the lawyer who tells him what he wants to hear rather than the overwhelming and sober views of others? Sure. People do that all the time. Have you never met twitter?
But what of the big questions raised by a small man?
A failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, in defiance of the very notion of constitutional government.
A bit platitudinous, and yet there’s merit to the contention that not even a president can commit crimes with impunity. But there are countervailing concerns, too.
And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. 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. It would be seen by many as politicized retribution. The prosecution would take many years to conclude; would last through, and deeply impact, the next election; and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.
As the majority of Americans believe that Trump should be prosecuted, perhaps that should tip the scales for Garland. After all, what’s the worst that can happen, Trump is indicted and wins election in 2024? Trump is indicted and acquitted, as with the two impeachments? A schism in the polity that will never heal, and may well give rise to bloodshed? Garland has some very difficult choices to make, far more complicated than the verdict in the court of public opinion. Then again, the public can always rely on its verdict and not elect Trump to office as punishment.