In the history of our country, no attorney general has ever prosecuted a former president in federal court for crimes committed while in office.
The Jan. 6 congressional hearings credibly present a damning narrative that then-President Donald Trump was the driving force behind a massive conspiracy to obstruct justice, interfere with the official Jan. 6 congressional proceedings and defraud the citizens of the United States of a fair election outcome.
While there appears to be little in the hearings that would undercut a successful criminal prosecution of the former president, neither do the hearings guarantee a successful prosecution.
Unlike congressional hearings, in a criminal prosecution, the former president will challenge all the evidence that prosecutors hope to present before a jury in a criminal trial. The process will test the credibility, biases and memories of witnesses. Federal rules of evidence may exclude certain key evidence or testimony disclosed in the Jan. 6 hearings. In every American courtroom, the defendant is presumed innocent until proven guilty beyond a reasonable doubt and the burden of proof is on the prosecution. No matter what we may think of Trump’s actions on Jan. 6, the picture before 12 open-minded jurors may look quite different once the defense presents its case.
Some have criticized the pace of the Department of Justice’s investigation, while others insist the public record already clearly supports an indictment and likely conviction of the former president. As to timing, it appears the investigation is proceeding in a deliberate fashion, careful and methodical. Out of fairness to prospective targets, the work of any federal investigation is confidential. Grand jury proceedings require confidentiality. The investigation will take as long as it takes. The attorney general will make a charging decision, whether it takes six weeks or six months, only after collecting and analyzing all the evidence, including the work of the Jan. 6 committee.
DOJ guidelines about the timing of a prosecution in proximity to an election are just that — guidelines. To be sure, these guidelines are important to maintain a degree of uniformity among federal prosecutions and to protect the reputation of the department against charges of favoritism and bias. However, in the end, the attorney general has wide discretion, guided by what is in the interest of justice.
Whether Congress makes a criminal referral of former President Trump to the Justice Department will matter little in Garland’s final decision. For example, Congress may decide that the facts support a referral yet may decline to do so because of concerns it will make their work look political. No one should expect the attorney general to blindly follow decisions or recommendations by the committee or to be constrained by regulations intended to guide decisions by line prosecutors in routine cases across the country.
Finally, the midterm elections will not dictate the timing or decision of the attorney general. Those on the Jan. 6 committee may feel a sense of urgency to complete its work given widely reported views that Republicans will retake control of the house and then disband the committee or undermine its work. Whatever happens this November, the department will continue its investigation and Garland will make a decision based on the evidence.
As to the strength of the government’s case, only Garland and his highly experienced team of prosecutors can best assess which crimes they can prove have been committed, if any, by the former president and others. They have tools that private individuals and congressional committees do not have to gather evidence and compel testimony.
A primary reason to punish criminal acts is to discourage future behavior. Here the nature of possible offenses is serious and requires accountability. This is especially relevant here given growing signs that former President Trump again intends to run for office. Even if a future prosecution is unsuccessful, the investigation and trial would nevertheless likely provide a strong future deterrent.
There are other serious issues confronting our country today, from abortion and gun rights to the growing threat from China and the war in Ukraine. Our government leaders must focus on these internal and external challenges. A trial of former President Trump will dominate the news and captivate the attention of the public and likely our government leaders for months. President Gerald Ford pardoned former President Richard Nixon for acts relating to the Watergate break-in, in part because Ford believed it was time for the nation to move on and heal. He thought it best to exercise the power of the sovereign to forgive transgressions by Nixon. President Biden has the power to do the same if he chooses, but granting a pardon is neither within the power of the attorney general nor within his discretion. The job of the attorney general is to prosecute wrongdoing no matter how popular or unpopular.
Merrick Garland enjoys a reputation of integrity and courage. I expect he will be fair in his charging decision with respect to former President Trump as he would with any other potential defendant. However, I suspect that here he will proceed with extra caution. If the government prosecutes a former president, the government should be especially confident of success.
Attorney General Garland will make his charging decision at a time of his choosing. He will not make this decision in a vacuum, nor rely solely on his own experiences. He will consult and listen to the views and recommendations of his senior team. He will weigh all of the evidence gathered by both the Jan. 6 committee and investigators at the Justice Department.
Whatever the decision, at some point Garland should explain how his decision advances the rule of law, and defend it to the American people, Congress and Justice Department personnel. He will have to explain his decision for history.
Alberto Gonzales was the 80th Attorney General of the United States and counsel to the president in the George W. Bush administration. He is now the Dean and Doyle Rogers Distinguished Professor of Law at Belmont University College of Law.