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Opinion If low-level zealots can be prosecuted for Jan. 6, so can Trump

An artist sketch depicts Guy Reffitt, joined by his lawyer William Welch, right, in Federal Court in D.C. on Feb. 28. (Dana Verkourteren/AP)
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Guy Reffitt, a recruiter for the Three Percenters right-wing movement who was convicted in March of five felonies — including obstruction of an official proceeding — for his involvement in the Jan. 6, 2021, attack on the U.S. Capitol, received a seven-year prison sentence on Monday. It’s the longest to date arising from the insurrection.

Donald Trump should pay close attention. The former president could well face a similar charge — and sentence.

In addition to his prison time, Reffitt received a tongue-lashing from U.S. District Judge Dabney L. Friedrich. The Post reports that Friedrich declared that Reffitt’s views were “absurd,” “delusional” and “way outside of the mainstream.” Couldn’t the same be said of Trump, whose delusional dream of holding power by any means necessary resulted in the catastrophic events of Jan. 6?

Friedrich was just warming up. The Post reports:

Reffitt, who has proclaimed himself a “martyr” from prison, sought to legitimize efforts by himself and others to foment a rebellion against so-called government tyranny, “believing he was going to forcibly remove [state and federal] legislatures and install a new government that will be approved by judges and the Constitution,” the judge said.
“Nothing could be further from the truth. Nothing. And to this day, he has not disavowed these comments,” said Friedrich, a 2017 Trump appointee.

Again, that could apply to Trump as well.

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The Justice Department is now pursuing a wide-ranging investigation encompassing the phony elector scheme as well as the violence on Jan. 6. Attorney General Merrick Garland recently assured the public, "We intend to hold everyone, anyone who was criminally responsible for the events surrounding Jan. 6, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable.”

In confirming there is no legal or other barrier (e.g., presidential immunity) foreclosing the department from prosecuting an ex-president, Garland effectively said that Trump should receive the same treatment as others implicated in Jan. 6. If facts and the law lead the Justice Department to conclude Trump broke the law, Garland would have no justification for giving Trump a pass.

Reffitt was found guilty because his intent was plainly to impede the electoral vote counting, an “official proceeding” in terms of the statute. Trump also intended to obstruct the electoral vote counting. Testimony from the House select committee on Jan. 6 has repeatedly illustrated that he was willing to see violence play out to achieve his aim, refusing to act for at least 187 minutes. Even if Trump truly believed he won the election (although there is ample evidence he did not), he “corruptly” sought to use a variety of schemes to delay the count.

Trump was no more entitled to do this than he would be, for example, to kidnap his vice president, Mike Pence, or to bribe Pence to reject the electoral votes. As former prosecutors Donald Ayer, Stuart Gerson and Dennis Aftergut wrote for the Atlantic, “Any argument that Donald Trump lacked provable criminal intent is contradicted by the facts elicited by the January 6 committee."

In short, if a low-level zealot such as Reffitt can be prosecuted, convicted and given seven years for carrying out the violent insurrection that Trump encouraged, after all of the former president’s other corrupt schemes failed, then there can be no moral or legal justification for letting Trump walk. There is no better illustration for the principle that “no one is above the law.”

When pressed as to whether he would pursue Trump even if he announced his candidacy for the 2024 presidential election, Garland insisted: “I’ll say again that we will hold accountable anyone who was criminally responsible for attempting to interfere with the transfer, legitimate, lawful transfer of power from one administration to the next.” In other words, there will be no special treatment afforded to an ex-president or someone seeking the presidency.

As the conviction of lower-level actors and hearings of the Jan. 6 committee have progressed, nothing has come up to suggest there is any constitutional barrier to pursuing Trump. Nor has any critical factual gap emerged that might prevent conviction. If Garland is to reaffirm the rule of law and make good on his promise to follow the facts and the law, it is hard to see why Trump should escape the same fate as Reffitt. That is the essence of pursuing justice without “fear or favor.”