Impeachment trial: The Senate is unlikely to convict Trump. Can we count on the courts?

Ask any die-hard Democrat their most vivid political fantasy and, if they’re honest, they will describe former President Donald Trump in an orange jumpsuit with his hands clenched around two jail cell bars. That image is not the equivalent of the “I’d like a date with Jennifer Aniston” dream because, well, Trump spent four years exploding the heads of prosecutors, ethicists and decent human beings with an unbroken chain of corruption that would make imprisonment a near certainty for most ordinary people.

But if 2020’s lesson in criminal justice was the deadly disparity between the system’s treatment of Black and white Americans, 2021 is going to be all about the disparity between the powerful and everyone else. And nothing will illustrate that bitter pill better than the events about to unfold around Trump’s role in the Jan. 6 attack on the U.S. Capitol.

There are a panoply of federal laws that make it illegal for someone to incite “any rebellion or insurrection against the authority of the United States”; agree with others to use force “to prevent, hinder, or delay the execution of any law of the United States”; impede “any official proceeding” before Congress; or intentionally disrupt “the orderly conduct of Government business” by engaging in “disruptive conduct” near a restricted building. 

A mob 'provoked by the president'

Others have effectively detailed how Trump fraudulently attempted to convince his supporters that the presidential election was stolen; how he leveraged congressional surrogates to amplify an illicit scheme to maintain presidential power; and how he doused rhetorical hot sauce on an angry mob that converged on Washington to do whatever was necessary to stop the final electoral count that would declare Joe Biden the president-elect.

Trump’s culpability for an insurrection that breached the heart of American democracy was aptly summarized by Senate Republican leader Mitch McConnell, a longtime Trump ally: “The mob was fed lies. They were provoked by the president."  McConnell’s “provoked,” and the federal insurrection statute’s “incited,” sound an awful lot like one another.

And to those who think that Trump is in the clear because he did not march with the mob to the Capitol, like he promised, there is a federal law that says someone who “counsels, commands, (or) induces” others to commit a crime is just as guilty as the people who physically commit the crime.

Constitutional:Of course the Senate can hold a Trump impeachment trial. There's no serious argument against it.

America’s first crack at holding Trump accountable will start Monday, when the Senate opens a trial based on the House-approved article of impeachment that charged Trump with “incitement of insurrection.” But the writing is already on the wall: 45 Republican senators recently voted to hold no impeachment trial at all, based on the unsupported position that a former president cannot be impeached. This all but ensures that Democrats will fail to get the 17 GOP votes needed to secure the constitutional remedy of disqualifying Trump from holding an elected public position again.

Once Trump’s Senate fraternity brothers and sorority sisters give him a pass, the real question is whether the Department of Justice will make good on its name by conducting a full investigation into the many activities of Trump that appear criminal. There is plenty to investigate, from the campaign finance fraud payoff of Stormy Daniels, to the extortion of Ukraine’s president that tied American financial aid to manufactured political dirt on Biden, to the breach of the Capitol that ended in the deaths of five people. 

More important, will DOJ indict Trump if the evidence supports it?

The initial impediment to any prosecution of Trump is one of perception. Trump corruptly used the department as his personal law firm — protecting himself from accountability and targeting his enemies. Biden and his attorney general are going to want to make a clean break from anything that could be construed as Biden enlisting DOJ to assist in a payback vendetta. That’s why Biden must assure the public that he has instructed his attorney general to erect a barrier between the White House and any investigation of the former president. Then, the attorney general must appoint an independent special prosecutor, preferably a Republican, to handle any Trump investigation.

By any standard:Whatever legal or constitutional test you apply, Trump incited the violent Capitol attack

In deciding whether to indict Trump, there will likely be ample evidence. After all, Trump was already named as “Individual 1,” an unindicted co-conspirator in the New York U.S. attorney’s campaign finance prosecution of Trump’s former personal attorney, Michael Cohen. And Trump was regularly churning out damning evidence, like being caught on a recorded telephone call asking the Georgia secretary of state to “find 11,780 votes” so he could beat Biden’s 11,779-vote lead.

Trump’s criminal culpability in that instance was so blatant that former Attorney General Eric Holder tweeted the text of the federal law it violated.  

It is with some trepidation that I hold a pin to the bubble, but the schoolbook ideal of a criminal investigation and the reality are often not the same. Yes, there will be months of witness interviews, reports, subpoenas, video viewings, telephone call transcriptions, grand jury testimony and legal analysis. The evidence and the law will be examined in microscopic detail. But other factors will come into play.

High-profile targets of DOJ criminal investigations come with their own set of rules. It is one thing for DOJ to risk losing an ordinary case that will go unnoticed. It’s quite another to lose a case on the world stage against the most high-profile defendant of all — a former U.S. president. Whether this is explicitly discussed among the federal or special prosecutors who investigate Trump, or whether it is quietly implied, it will color consideration of a Trump indictment and ratchet up the quantum of proof required to bring a criminal case.

The Justice Manual, which sets forth the principles of federal prosecution that act as a guide for all federal prosecutors, states that a prosecution should commence when there is sufficient evidence to “obtain … a conviction.” But in any case against Trump that proceeds to trial, it is almost certain that at least one of the 12 jurors will be a Trump supporter capable of blocking a conviction, no matter how strong the evidence. The Justice Manual considers the circumstance of a popular figure against whom there is strong evidence, but whom jurors are unlikely to convict. It allows, though does not require, prosecution.

Stop letting Trump off the hook

It is this discretion that results in prosecutors often demanding more evidence before prosecuting a politician or celebrity for the same conduct that would bring swift charges against an ordinary citizen. Case in point: Approximately 180 Capitol rioters have been indicted, while the man on whose behalf they acted is boning up on his golf game at his Florida resort. 

We saw this type of “caution” play out with special counsel Robert Mueller, who presented a report bursting with evidence of Trump’s obstruction in the Russia investigation. Mueller was never going to take the heat for indicting Trump because Justice Department precedent says sitting presidents cannot be prosecuted. Yet Mueller would not even publicly opine on the task he was hired to perform: Determine whether Trump had committed a crime that would justify an indictment when he left office.

Prosecutors considering a Trump indictment will be concerned that in a case in which the notoriety of the defendant might be more important than the evidence, a widely publicized acquittal could undercut the deterrent value of prosecutions across the country. That’s not to say that there will be no prosecution of Trump. The Justice Department has a history of doing the right thing and taking tough cases.

Whether Trump adds “convicted felon” to the most scandal-filled presidency in U.S. history is uncertain, and depends on a complicated process that is likely to have only just begun. What is certain is that Senate Republicans are on course to blow past the impeachment exit ramp — squandering their second opportunity to hold Trump accountable and protect American democracy from the man who brought it to its knees.

Michael J. Stern, a member of USA TODAY's Board of Contributors, was a federal prosecutor for 25 years in Detroit and Los Angeles. Follow him on Twitter:  @MichaelJStern1