'Overwhelming evidence' but no prosecution? Legal experts grapple with DOJ’s tepid response to Trump

During a recent series of hearings, House Speaker Nancy Pelosi’s select committee on the January 6, 2021 insurrection has laid out a thorough and incredibly detailed case against former President Donald Trump. But that doesn’t necessarily mean that U.S. Attorney General Merrick Garland will opt to pursue some type of Trump-related prosecution. Whether Garland will or won’t decide to move forward with such a prosecution remains to be seen.

Journalist Bart Jansen, in an article published by USA Today on July 24, takes a look at what legal experts have to say about the January 6 hearings and the possibility of Garland and the U.S. Department of Justice (DOJ) deciding to prosecute. One of them is University of Michigan law professor Barbara McQuade, a former federal prosecutor and a frequent guest on MSNBC.

McQuade told USA Today that the committee offered “overwhelming evidence” that Trump’s associates, following the 2020 election, made it clear to him that he had lost — and that there is the possibility of a “strong case” that Trump tried to obstruct Congress from counting the electoral votes on January 6, 2021. Nonetheless, McQuade told USA Today, “Just because DOJ can file charges does not mean it should file charges…. Here, there are significant drawbacks to criminal charges, such as creating the appearance of a political motivation by DOJ, which could lead to civil unrest or even civil war.”

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McQuade also told USA Today, “It is difficult to assess the likelihood of criminal charges. Based on what we have seen through the committee, it seems to me that a strong case can be made to prove conspiracy to defraud the United States and conspiracy to obstruct an official proceeding.”

Renato Mariotti, another former federal prosecutor, told USA Today, “I’ve become increasingly skeptical that the Justice Department has mounted an aggressive investigation into Trump’s criminal liability.”

Jansen reports, “Without any dispute that Trump gave a fiery speech (on January 6, 2021) and members of his audience went to the Capitol where they violently attacked people, Mariotti said, the legal question is whether the speech was protected under the First Amendment by a president speaking about matters of public concern.”

In Fulton County, Georgia, District Attorney Fani Willis continues to investigate Trump’s post-election activities in that state. Mariotti said of Willis’ investigation, “I would predict Fulton County is much more likely to act than the Justice Department. However, I don’t necessarily think that means they have the strongest charges.”

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Patrick Cotter, a former federal prosecutor known for his investigations of mob boss John Gotti and other organized crime figures, is skeptical that a witness tampering charge would work well against Trump. And he doubts that the prosecution would be able to show “substantive evidence of an effort to influence a potential witness.”

Attorney Norm Eisen, who was part of the first impeachment case against Trump, discussed Willis’ probe in Georgia as well as the January 6 committee’s probe. Eisen told USA Today, “I think that Trump and his co-conspirators face substantial risk — first state charges, and then federal ones.”

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