In a 2019 ruling requiring the former White House counsel Don McGahn to testify at a congressional hearing about former President Donald Trump’s alleged abuses of power, Judge Ketanji Brown Jackson declared that “presidents are not kings.” If we take that admonition from our next Supreme Court justice seriously and look at the evidence amassed so far by the House select committee on the Jan. 6 attack, we can — and in fact must — conclude that the prosecution of Mr. Trump is not only permissible but required for the sake of American democracy.
This week’s hearings showed us that Mr. Trump acted as if he thought he was a king, not a president subject to the same rules as the rest of us. The hearings featured extraordinary testimony about the relentless pressure to subvert the 2020 election that the former president and his allies brought against at least 31 state and local officials in states he lost, like Michigan, Arizona, Georgia and Pennsylvania. He or his allies twisted the arm of everyone from top personnel at the U.S. Department of Justice to lower-level election workers.
The evidence and the testimony offered demonstrates why Attorney General Merrick Garland’s Justice Department should convene a grand jury now, if it hasn’t already, to consider indicting Mr. Trump for crimes related to his attempt to overturn the results of the election, before he declares his candidacy for president in 2024, perhaps as early as this summer.
Although a Trump prosecution is far from certain to succeed, too much focus has been put on the risks of prosecuting him and too little on the risks of not doing so. The consequences of a failure to act for the future of democratic elections are enormous.
There’s no denying that prosecuting Mr. Trump is fraught with legal difficulties. To the extent that charges like obstructing an official proceeding or conspiring to defraud the United States turn on Mr. Trump’s state of mind — an issue on which there is significant debate — it may be tough to get to the bottom of what he actually believed, given his history of lying and doubling down when confronted with contrary facts. And Mr. Trump could try to shift blame by claiming that he was relying on his lawyers — including John Eastman and Rudy Giuliani — who amplified the phony claims of fraud and who concocted faulty legal arguments to overturn the results of the election. Mr. Trump could avoid conviction if there’s even one juror who believes his repeated lies about the 2020 election.
And yes, there are political difficulties too. The “Lock her up!” chants against Hillary Clinton at 2016 Trump rallies for her use of a personal email server while she was secretary of state were so pernicious because threatening to jail political enemies can lead to a deterioration of democratic values. If each presidential administration is investigating and prosecuting the last, respect for both the electoral process and the legal process may be undermined.
That concern is real, but if there has ever been a case extreme enough to warrant indicting a president, then this is the case, and Mr. Trump is the person. This is not just because of what he will do if he is elected again after not being indicted (and after not being convicted following a pair of impeachments, one for the very conduct under discussion), but also because of the message it sends for the future.
Leaving Mr. Trump unprosecuted would be saying it was fine to call federal, state and local officials, including many who have sworn constitutional oaths, and ask or even demand of them that they do his personal and political bidding.
The testimony from the hearings reveals a coordinated and extensive plot to overturn the will of the people and install Mr. Trump as president despite Joe Biden winning the election by 74 Electoral College votes (not to mention a margin of about seven million in the popular vote). There was political pressure, and sometimes threats of violence, across the board. Mr. Trump and his cronies hounded poll workers and election officials to admit to nonexistent fraud or to recount votes and change vote totals.
Wandrea Moss, known as Shaye, a former Georgia election worker, testified Tuesday about the harassment and violent threats she faced after Trump allies accused her and her mother of election fraud. As The Associated Press reported, one of Mr. Trump’s lawyers, Mr. Giuliani, pointed to surveillance video of the two women working on ballot counting and “said the footage showed the women ‘surreptitiously passing around USB ports as if they are vials of heroin or cocaine.’” The “USB ports” turned out to be ginger mints.
It is no wonder that election workers and election officials are leaving their offices in fear of violence and harassment.
Former top Department of Justice officials in the Trump administration testified on Thursday about pressure from Mr. Trump, in collusion with a lower-level department official named Jeffrey Clark, to issue a letter falsely claiming evidence of significant fraud in the elections. We heard in Thursday’s hearing that Mr. Trump, in a meeting that echoed his earlier role as boss on the television show “The Apprentice,” almost fired the attorney general, Jeffrey Rosen, to replace him with Mr. Clark, who had no experience in either criminal law or election law.
The confirmation by the Department of Justice under Mr. Clark of this “fraud” would have served as a predicate for state legislators, also pressured by Mr. Trump and his allies, to “decertify” Biden electors and conjure up a new slate of electors supporting Mr. Trump.
The pressure did not stop there. An earlier committee hearing recounted severe pressure from Mr. Trump on Vice President Mike Pence to manipulate the rules for Congress to count electoral votes, a plan that depended on members of Congress supporting spurious objections to the Electoral College votes in states that Mr. Biden won.
Mr. Trump also whipped up the Jan. 6 crowd for “wild” protests and encouraged it to join him in pressuring Mr. Pence to violate his constitutional oath and manipulate the Electoral College count.
In his testimony on Tuesday before the Jan. 6 committee, the speaker of the Arizona House, Rusty Bowers, described the intense barrage coming at him from calls from Mr. Trump and his allies, and from Trump supporters who protested outside his house and threatened his neighbor with violence. But Mr. Bowers compared the Trump crew to the book “The Gang That Couldn’t Shoot Straight” because they failed to come forward with a plausible plan to overturn the election results in Arizona or elsewhere.
Seeing the group as bumbling, though, minimizes the danger of what Mr. Trump and his allies attempted and downplays how deadly serious this was: As Representative Adam Schiff, a member of the committee, noted, the country “barely” survived Mr. Trump’s attempt at election subversion, which could have worked despite the legal and factual weaknesses in the fraud claims.
What if people of less fortitude than Mr. Bowers and others caved? Consider Brad Raffensperger, the secretary of state in Georgia, who also testified on Tuesday about pressure from the Trump team. He described a direct phone call from a man who was then the sitting president prodding him to “find” 11,780 votes to flip Georgia from Mr. Biden to Mr. Trump. What if, instead of rebuffing Mr. Trump, Mr. Raffensperger declared that he felt there were enough questions about the vote count in Democratic counties in Georgia to warrant the legislature’s appointment of new electors, as Mr. Trump had urged?
If even one of these officials had cooperated, the dikes could have broken, and claims in state after state could have proliferated.
There’s no question that Mr. Trump tried to steal the election. Richard Donoghue, a top official at the Department of Justice serving during the postelection period, testified on Thursday that he knocked down with extensive evidence every cockamamie theory of voter fraud that Mr. Trump and his allies raised, but to no avail. He testified that there were nothing but “isolated” instances of fraud, the same conclusion reached by the former attorney general, Bill Barr.
Mr. Bowers testified that when he demanded evidence from Mr. Giuliani, Mr. Giuliani said he had theories, but no evidence. The president appears to have known it too. According to Mr. Donoghue’s handwritten notes of his conversation with Mr. Trump, when confronted with the lack of evidence of fraud, the former president said, “Just say the election was corrupt” and “leave the rest to me” and the Republican congressmen. The president even talked about having the federal government seize voting machines, perhaps in an attempt to rerun the election.
The longer Mr. Garland waits to bring charges against Mr. Trump, the harder it will be, especially if Mr. Trump has already declared for president and can say that the prosecution is politically motivated to help Democrats win in 2024. The fact that federal investigators conducted a search for evidence at the home of Mr. Clark shows that the department is working its way ever closer to the former president.
What Mr. Trump did in its totality and in many individual instances was criminal. If Mr. Garland fails to act, it will only embolden Mr. Trump or someone like him to try again if he loses, this time aided by a brainwashed and cowered army of elected and election officials who stand ready to steal the election next time.
Mr. Trump was the 45th president, not the first American king, but if we don’t deter conduct like this, the next head of state may come closer to claiming the kind of absolute power that is antithetical to everything the United States stands for.
Richard L. Hasen (@rickhasen), who will join the University of California, Los Angeles, as a professor of law in July, is the author of “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It.” In 2020, he proposed a 28th Amendment to the Constitution to defend and expand voting rights.
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