DOJ has multiple possible paths to Trump indictment: Here’s what it could look like

The Department of Justice’s (DOJ) apparent new focus on Donald Trump in its Jan. 6 investigation presents prosecutors with multiple possible paths to an indictment, as sketched out by the House select committee’s own investigation into the former president’s White House and outside allies. 

In recent days, federal prosecutors have reportedly obtained phone records from former White House chief of staff Mark Meadows, secured cooperation from the committee’s star witness, Cassidy Hutchinson, and questioned two of former Vice President Mike Pence’s top aides before a grand jury. 

The department’s new line of inquiry will give it an opportunity to corroborate the select committee’s evidence and fill in remaining gaps in the lawmakers’ case against Trump. 

Jeff Robbins, a former federal prosecutor and congressional investigative counsel, said he believes the committee’s hearings have likely prompted the renewed DOJ efforts by presenting a persuasive public case against Trump.

“It’s probably not coincidental that there seems to be an uptick in DOJ activity either aimed at the former president or encompassing the former president’s conduct after these hearings,” Robbins said. “I don’t think the circumstances are the same as they were several months ago, because the entire country has seen so much evidence of criminal intent.”

The Washington Post reported new details about the Justice Department’s focus on Tuesday. According to the report, prosecutors have asked grand jury witnesses for information about their conversations with Trump and the former president’s conduct around the Jan. 6, 2021, attack.

The focus has been on Trump’s effort to pressure Pence into obstructing Congress’s certification of the Electoral College results and a scheme to present a slate of fake electors who would have cast their “votes” for the former president to override results in key states President Biden won.

Those two areas have also been the subject of select committee hearings over the summer, in which lawmakers alleged that Trump’s legal advisers knew the schemes were likely illegal yet pushed ahead with them anyways.

Members of the select committee have said their evidence supports charging Trump with obstruction of an official proceeding — a felony charge that carries a maximum sentence of 20 years in prison and has been used against hundreds of rioters charged in the aftermath of the attack.

According to the Post, the DOJ is pursuing lines of inquiry that could lead them to weighing such charges against Trump as well as those involving conspiracy to defraud the U.S.

Even seditious conspiracy charges, which have been brought against members of the Proud Boys and Oath Keepers, are reportedly under consideration, though experts warn the DOJ may ultimately be hesitant to bring such a weighty case.

And some observers say the select committee has supplied ample evidence that would overcome the significant legal hurdles any potential prosecution would have to overcome.

One of the hearings’ main achievements, Robbins said, was providing a “mountain” of evidence that could be used to show Trump acted with corrupt intent to overturn the election, a major threshold for prosecutors in any potential case that he conspired to obstruct or defraud government proceedings. He said the DOJ’s ability to secure cooperation by flipping potential witnesses, a tool that the select committee lacks, would likely be the next course of action for prosecutors.

“There are going to be people who were privy to these discussions with the former president who have a much more powerful incentive to cooperate with the Department of Justice than they did to testify before the committee,” Robbins said. “I assume that process is underway.”

Danya Perry, a former federal prosecutor, said the committee has already provided much of the evidence that would be needed to back charges for obstructing a proceeding. 

“We’ve seen already that every single credible adviser — legal, political, familial and otherwise — to the former president was telling him that he had lost the election and there was no proof of fraud. Whether he willfully ignored that, or simply didn’t care, he objectively would have understood those facts. And I think there’s some direct evidence that he did,” she said.

But she thinks perhaps the strongest case Attorney General Merrick Garland and the DOJ would be able to make revolves around the fake elector scheme, pointing to reporting from The New York Times on Monday detailing emails from campaign staff that referred to their plans to send “fake” certificates.

“The fake electors is just something that lay people can understand better. If you have literally a competing set of electors that we now heard were actually called fake by the conspirators or by the schemers, that’s just something you put in front of a jury of citizens and they see that and they say, ‘Yeah, I understand that, I can wrap my mind around that,’ ” she said.

“Anyone who tries to circumvent the rules on the books and tries to do that by deceit and fraud and does us the favor of calling it fake — anyone in that position should be convicted of fraud.”

The DOJ has done little to tip its hand to the committee even as it asks for evidence from them, with Rep. Pete Aguilar (D-Calif.) telling reporters Wednesday that “the last request was, you know, all 1,000 interviews” they’ve done.

The panel and the DOJ are in the process of negotiating what form information sharing might take, though Rep. Bennie Thompson (D-Miss.), the panel’s chairman, has insisted that any review involve an “in-camera” session where prosecutors could look at, but not take, any of the depositions.

“We’ve spoken a lot about accountability, and in order for there to be true accountability, the Department of Justice may have to act,” Aguilar said, “but that’s not our job.”

Perry said if the DOJ does move to charge Trump, the decision will be made by the “ponderous, deliberate, methodical attorney general that we have.” 

“Obviously Garland and the line prosecutors are going to be very reticent about filing any charges that seem overly ambitious or aggressive. This is one where they’re going to need to feel they are on as solid of ground as possible,” she said.

“They’re going to want to make sure they cannot just support an indictment but sustain a conviction, and obviously the standard for that is beyond a reasonable doubt, but here I think they’re going to assign themselves with a higher burden of proof than exists in the charging instructions the jury will get.”

Mychael Schnell contributed.