And so we should consider how he will go about deciding to prosecute the former disgraced president. President Biden will not tell him, and Garland has vowed to ignore public pressure. Fortunately, he will enter an office with a literal manual.
The Justice Department’s manual for prosecution sets forth the standard: “The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.”
For sake of argument, let’s assume we essentially know all the relevant facts concerning the former president’s conduct leading up to the violent attack on Jan. 6, including his phone call to Georgia Secretary of State Brad Raffensperger; his pattern of lying about the election and revving up his base; his invitation for supporters to come to the nation’s capital on Jan. 6 for a “wild” protest; his exhortation for his followers to march on the Capitol; his refusal to respond to pleas to rescue the Capitol in a timely manner; and his weak entreaties for protesters to “stay” peaceful and his expression of “love” for insurrectionists. We might find even more information confirming his resistance to secure the Capitol, but we know he did not act swiftly to halt the attack when he had the power and duty to do so.
The number of potential crimes (e.g., extorting Raffensperger, inducing an official to commit election fraud, incitement to riot, seditious conspiracy) each have component parts. Many require specific intent.
For example, the federal law against inciting a riot would require a prosecutor to prove the former president was engaged in action “urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.” In other words, the prosecutor would have to determine if he was engaged in protected First Amendment speech that constitutes “advocacy of ideas” or “expression of belief.”
A riot is defined as a “public disturbance involving an act or acts of violence or a threat of violence by one or more persons part of an assemblage of three or more persons, which act or acts shall constitute a clear and present danger of, or shall result in, damage or injury to the property of any other person or to the person of any other individual.” That clearly applies to the Jan. 6 attack. Assuming Garland has admissible evidence (the defendant’s own admissions, eyewitnesses, written documents), he likely has sufficient evidence to prosecute on this charge.
Garland would then proceed to determining whether there is a federal interest in prosecution. Here, the Justice Department manual lists all sorts of considerations, including the seriousness of the offense, whether prosecution would have a deterrent effect for future crimes, the interests of victims and the defendant’s willingness to cooperate. On virtually all counts, one would reasonably conclude there is a federal interest in prosecution.
The next issue — whether the former president is subject to prosecution in other jurisdictions — raises some interesting questions. Will Georgia prosecute him for possible violations of state law? If so, Garland might deem it unnecessary for the feds to address that potential crime. The possibility that New York state might prosecute him for tax, banking or insurance fraud stemming from an entirely different fact pattern, however, should not be relevant.
Finally, the existence of a non-criminal remedy must be considered. Impeachment did not work, so that is not an alternative means of deterrence and pursuit of justice. Civil litigation under the Ku Klux Klan Act or wrongful-death suits by victims families might provide a partial remedy. However, there is no other means to achieve the overriding interest in punishing the disgraced ex-president and preventing another violent attack on our democracy. That interest — protecting the sanctity of vote counting and the peaceful transfer of power — cannot be addressed in another forum.
In sum, the decision to prosecute the ex-president for the Capitol attack might be controversial but not difficult. Once elements of the various crimes are established, there is indisputably a federal interest. Likewise, for the events leading to the Capitol attack, there is no alternative jurisdiction or remedy available for the Jan. 6 crimes. Whether it is good or bad to convict former presidents should not enter into Garland’s considerations. (If Biden thinks prosecution would be detrimental to the country, he could choose to pardon the ex-president, although he has said he has no plans to do so.)
If Garland goes by the “book" and decides to prosecute, his stature as an independent, esteemed former judge makes him precisely the right person for the job.