Prosecuting Trump: Being a jerk isn’t criminal

“SECVNDINVS CACOR.” When those words were found recently on an ancient stone in Northumberland, England, there was great excitement about what might be revealed about Roman life in the 3rd Century. As it turned out, the painstakingly chiseled words (which were accompanied by the image of a giant phallus) simply said that a guy named Secundinus was … well … human fecal matter.

The stone was an impressive effort just to establish for all posterity that Secundinus was a jerk.

The House Select Committee investigating the Jan. 6 riot is an equally impressive effort to painstakingly debunk election fraud claims and to show how former President Donald Trump refused to accept his electoral defeat. If the purpose were to proclaim “TRUMPUS CACOR,” it would likely get little argument, given the testimony about elected officials and election workers hiding out in their homes after being called out by name by the then-president.

The hearings have created a lasting, damning record leading up to Jan. 6. Yet, some members of the select committee have claimed they have established clear evidence of criminal acts by Trump. It has to be more than Rep. Liz Cheney’s (R-Wyo.) insistence that the evidence would show Trump was not “an honorable man” on Jan. 6 — an assertion that even some Trump supporters might endorse.

That claim is important to avoid confirmation of what was widely reported before the hearings. According to The New York Times, the hearings were framed with the intent to use the select committee largely to “recast the midterm message” and “give [Democrats] a platform for making a broader case about why they deserve to stay in power.” In other words, chiseling out “Trumpus Cacor” before the November election.

The fact is that this evidence is important for Americans to hear and see. Yet, the claims of established crimes this week seemed to run from the visceral to the recreational.

On CNN’s “Erin Burnett OutFront,” Harvard law professor Laurence Tribe declared that Trump can now be charged with the attempted murder of former Vice President Mike Pence “without any doubt, beyond a reasonable doubt, beyond any doubt, and the crimes are obvious.” In addition to declaring that he is certain Attorney General Merrick Garland will now charge Trump, Tribe said: “There are other crimes that have been proven. Those are plenty to start with.”

Obviously, it is nonsensical to claim that Trump could be charged with attempted murder. However, the evidence presented does undermine Trump’s claim that he truly believed that the election was stolen when he pressured state and federal officials to block certification of the election.

Hearing an account of Trump lawyer John Eastman tell the Arizona House Speaker Rusty Bowers to “just do it” in scrapping the state’s slate of electors was cringeworthy. However, many seem to be making the same demand of Attorney General Garland about bringing criminal charges. As shown below, “just do it” is far better in selling running shoes than winning legal cases.

Crimes have elements, and the committee cannot seem to agree on even the crime, let alone the elemental evidence. Indeed, reports indicate that the committee is divided on even making a criminal referral to the Justice Department.

Here are the three most commonly cited crimes this week and their respective challenges for prosecutors:

Conspiracy to obstruct Congress

The committee has established that Trump was told by his attorney general, White House counsel, and a host of Justice Department and White House lawyers that there was no good-faith legal basis to challenge the election’s certification or a factual basis to support the alleged widespread electoral fraud.

However, to prove this case, the Justice Department would need to show an intent by Trump to obstruct an official proceeding of Congress. That cannot be based simply on the fact that he and his supporters in Congress planned to challenge the certification of the vote. Challenges to certification have been made by Democrats, including Select Committee Chairman Bennie Thompson (D-Miss.), who voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016.

An obstruction charge would have to show that Trump was planning for violence or actively supported the violence as it unfolded. However, it now appears that National Guard personnel were offered by the Trump Defense Department — but declined — four days before the riot. Trump’s delay in calling for supporters to go home was denounced by many that day; some of us objected to Trump’s speech as he was giving it and later criticized his recklessness. Making a case for condemnation is easier than making a case for criminalization of speech.

Conspiracy to defraud

Conspiracy to defraud the government is equally challenging. It would require the government to prove that “at least two people entered into an agreement to obstruct a lawful function of the government, by deceitful or dishonest means.” However, this ignores the fact that, as the committee has repeatedly stressed, there were two teams of Trump lawyers: the “Team Normal” and “Team Crazy.”

Trump may have been delusional or dishonest in siding with one team over the other. The committee has portrayed “Team Crazy” as a clown parade — but a clown parade does not make a criminal conspiracy. For a strong federal case, the charge would have to be based on proof that Trump believed these legal and factual claims were meritless. Not probably meritless but entirely, knowingly meritless. (A Georgia grand jury is looking into the separate possibility of state election fraud violations.)

Trump has long used litigation as a business and political cudgel, often advancing weak legal claims. He has been criticized for treating the law as endlessly malleable. The Democrats themselves have supplied Trump with this best defense. They have often portrayed him as a megalomaniac who could not accept that he lost the election. They offered pseudo-scientific accounts of the “shared psychosis” of Trump and his supporters in refusing to admit defeat. To bring a charge over such a challenge could criminalize future challenges when one party claims that the other lacked a good-faith basis.

Seditious conspiracy

After the riot, there were widespread calls for criminal charges over insurrection or incitement. Indeed, to the thrill of many in the media, District of Columbia Attorney General Karl Racine announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks (R-Ala.) for incitement. Then nothing happened. The reason was not any misguided affection for Trump; the problem was that Racine could not make the case.

The case has still not been made.

After promising new evidence of a criminal conspiracy with groups like the Proud Boys, the committee showed new tapes that simply amplified rather than added to what was already known. Indeed, in its opening hearing, the committee tellingly showed the same tape from a presidential debate when Trump told the Proud Boys to “stand back and stand by.” That much criticized statement does not make for a conspiracy carried out on national television. The committee has yet to show a direct link between these groups and Trump in carrying out a plan of insurrection.

The select committee may still have the smoking-gun evidence of a criminal conspiracy. However, if the committee hopes to do more than declare Trump a modern-day Secundinus, it still has to prove that he is a criminal.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.