Through 10 public sessions and a thousand interviews, the congressional committee that examined the Capitol insurrection of Jan. 6, 2021, and issued four criminal referrals against Donald Trump did relatively easy work. The panelists – two Republicans and seven Democrats – were united in their contempt for the former president and took few risks in urging the Justice Department to initiate court action, and their unanimous vote was lauded by their friends and political allies.
The next steps are considerably more difficult – and involve questions that no American institution or public official has ever confronted before.
The Justice Department has to decide whether Mr. Trump committed a crime in seeking to overturn the 2020 election, enflaming his supporters or bidding them to march to the Capitol. Attorney-General Merrick Garland must decide whether undertaking the unprecedented step of prosecuting a former president is warranted. Then, considering the combustible state of contemporary American life, he must judge whether such a prosecution would be wise. And finally, if all three are justified – and there is no assurance that any of them, let alone all of them, justifies a positive answer – a judge or jury must decide how to dispose of the case against a declared candidate for the White House.
“The Jan. 6 committee served our country well, but the road ahead is uncertain,” Democratic Senator Sherrod Brown of Ohio said in an interview. “But no one can pretend to know what will happen.”
Taken together, these questions comprise what Winston Churchill might have described as a dilemma wrapped in a quandary inside a conundrum.
Committee’s vote on Trump’s Jan. 6 involvement a sombre, historic moment in American politics
And the result, again to paraphrase Churchill, this time from the first volume of his 1923 history of the First World War: The terrible ifs accumulate.
If Mr. Trump is guilty of fomenting a riot or trying to overturn the election or in general (in the wording of the Jan. 6 committee) defrauding the United States, are his actions defensible as political speech – mere acts of freedom of expression and thus protected by the First Amendment to the Constitution?
If Mr. Garland and special counsel Jack Smith believe Mr. Trump’s actions constitute a criminal act, do they have the responsibility to pursue legal action against him? Or is Mr. Trump shielded from legal action by virtue of some combination of precedent, executive privilege and his status as a putative political rival to Joe Biden, who heads the executive branch, of which the Justice Department is a part?
If precedent and a perceived lack of criminal evidence against the former president prompt Mr. Garland to pass on charging Mr. Trump for his actions involving the election and the Capitol rampage, does that also protect Mr. Trump from prosecution for his possession of secret documents at his Mar-a-Lago retreat in Florida? Or does the document case present Mr. Garland with a consolation prize to present to Democrats and others who are hungry to see Mr. Trump prosecuted for something – anything? Would that thus allow the Attorney-General to avoid questions about Mr. Trump’s First Amendment rights and – based on the fact that the documents case specifically involves the conduct of a former government official – permit him to skirt vital questions involving the legal vulnerability of a former president.
No questions involving such a tangled web of justice and politics have even been presented in the United States – and they come at an unusually contentious time in the life of a country that for more than two centuries has taken pride in the stability of its democratic institutions and traditions and has served as a model for republics worldwide.
“One way or the other,” said Anne Marshall, a Mississippi State University historian, “this will be seen as a critical pivot point in our history.”
None of these questions will be resolved easily, and both the delight (of Trump opponents) and the horror (of Trump loyalists) prompted by the notion that the 45th president might face the threat of imprisonment are premature, as that outcome may never come to pass.
“There’s no constitutional limitation that would apply to any prosecution of Trump,” said Stefanie Lindquist of the Arizona State University Law School. “But we are a long way from the question of how effective a campaigner he can be if he is in prison or how effective a president he could be in prison. There are going to be a lot of hard decisions that have to be posed and answered, and there will be pre-trial shenanigans that will delay things. This is not going to be resolved quickly.”
Even so, the very existence of these questions, and this speculation, provides no comfort for a man who plans to hit the campaign trail in a matter of weeks.
“This is very serious for Trump,” said Margaret Russell, who teaches constitutional law at the Santa Clara University Law School. “The committee put forward the most serious set of accusations one can lodge against a president. Before the hearings, you could wonder whether Trump set out to incite a riot. But now, after the committee findings, it is clear he did. The committee showed his connection to the riot and his intent. He knew what was happening, and now we know that for sure.”
Only one lawmaker has paid a political price for her role in the Jan. 6 committee: Democratic Representative Elaine Luria of Virginia was defeated in her re-election bid last month. GOP Representative Liz Cheney of Wyoming lost her renomination battle, but she was targeted by Trump allies long before the committee was constituted, principally for her vote to impeach the former president and for her months of frank criticism of him.
The price for those involved in the next steps may be more substantial. They, like Mr. Trump, will be judged by history.