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      5 Takeaways From Thursday’s Jan. 6 Hearing

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      The House committee’s fifth hearing focused on President Donald J. Trump’s attempts to harness the powers of the Justice Department to remain in office. Relying on testimony of three former top Justice Department officials who played central roles in the episode, the committee laid out in detail how Mr. Trump and his allies in the department and on Capitol Hill sought to install a loyalist atop the Justice Department and reverse the election results from a key swing state.Here are five key takeaways.It was the most blatant attempt to use the Justice Department for political ends at least since Watergate.Mr. Trump aggressively pursued a plan to install as acting attorney general a little-known Justice Department official, Jeffrey Clark, who was prepared to take actions to reverse the election results. As they fought to head off the move, a group of White House lawyers and the leadership of the Justice Department feared that the plan was so ill-conceived and dishonest that it would have spiraled the country into a constitutional crisis if it had succeeded.The president came so close to appointing Mr. Clark that the White House had already begun referring to him as the acting attorney general in call logs from Jan. 3, 2021. Later that day, Mr. Trump had a dramatic Oval Office showdown with top Justice Department officials and White House lawyers, who told Mr. Trump that there would be a “graveyard” at the Justice Department if he appointed Mr. Clark because so many top officials would resign.In the meeting, Mr. Trump chastised the acting attorney general, Jeffrey A. Rosen, for refusing to do more to help him find election fraud. Only after hours of argument — partly about the lack of substance behind Mr. Trump’s claims of election fraud but also about the political ramifications for him if he took action that led to the exodus of top Justice Department officials — did Mr. Trump relent and back off his plan to replace Mr. Rosen with Mr. Clark.The heart of the scheme was a draft letter to officials in Georgia.At the center of the plan was a letter drafted by Mr. Clark and another Trump loyalist that they hoped to send to state officials in Georgia. The letter falsely asserted that the department had evidence of election fraud that could lead the state to rethink its certification of Joseph R. Biden Jr.’s victory there. The letter recommended that the state call its legislature into session to study allegations of election fraud and consider naming an alternate slate of electors pledged to Mr. Trump.The department’s top officials and Mr. Trump’s legal team in the White House were all appalled by the letter because it would be giving the imprimatur of the nation’s top law enforcement agencies to claims of election fraud that the department had repeatedly investigated and found baseless. The letter was so outrageous that a top White House lawyer, Eric Herschmann, testified that he told Mr. Clark that if he became attorney general and sent the letter he would be committing a felony.The Justice Department’s acting deputy attorney general, Richard P. Donoghue, testified at the hearing that sending it would have been tantamount to the Justice Department intervening in the outcome of the election.“For the department to insert itself into the political process this way, I think would have had grave consequences for the country,” Mr. Donoghue said. “It may have spiraled us into a constitutional crisis.”Trump would not give up on his claims of fraud.Time after time, the White House brought baseless and sometimes preposterous claims of election fraud — including internet conspiracy theories — to Justice Department officials so that they could use the nation’s law enforcement powers to investigate them. And time after time, the department and the F.B.I. found the claims had no validity.The pattern became so extraordinary that at one point the White House chief of staff, Mark Meadows, sent a YouTube video to department officials from Representative Scott Perry, Republican of Pennsylvania, that claimed an Italian defense contractor uploaded software to a satellite that switched votes from Mr. Trump.A top Defense Department official, Kashyap Patel, followed up with Mr. Donoghue about the claim, and the acting defense secretary, Christopher C. Miller, reached out to a defense attaché in Italy to discuss the claim, which was never substantiated.About 90 minutes after Mr. Donoghue had helped persuade Mr. Trump not to install Mr. Clark as acting attorney general, Mr. Trump would still not let go, calling Mr. Donoghue on his cellphone with another request: to look into a report that an immigration and customs agent in Georgia had seized a truck full of shredded ballots. There turned out to be nothing to it, Mr. Donoghue testified.Trump considered naming a loyalist lawyer as a special counsel.As Mr. Trump searched for any way to substantiate the false fraud claims, he tried to install a loyalist as a special counsel to investigate them. One of Mr. Trump’s personal lawyers, Sidney Powell — who had become a public face of Mr. Trump’s attempts to overturn the election — said in testimony played by the committee that Mr. Trump discussed with her the possibility of taking on that position in December.The committee also played testimony of William P. Barr, who was attorney general until the middle of December 2020, saying that there was no basis to appoint a special counsel. And the committee suggested that the idea was part of the larger effort to cast doubt on the legitimacy of Mr. Biden’s victory and open the door to Congress considering alternate slates of Trump electors from swing states.“So let’s think here, what would a special counsel do?” said Representative Adam Kinzinger, Republican of Illinois, who led the day’s questioning. “With only days to go until election certification, it wasn’t to investigate anything. An investigation, led by a special counsel, would just create an illusion of legitimacy and provide fake cover for those who would want to object, including those who stormed the Capitol on Jan. 6.”Mr. Kinzinger added: “All of President Trump’s plans for the Justice Department were being rebuffed.”Members of Congress sought pardons — and Trump considered the requests.In the days after Jan. 6, several of Mr. Trump’s political allies on Capitol Hill, who had helped stoke the false election claims and efforts to overturn the results, sought pardons from Mr. Trump, who considered granting them, according to testimony on Thursday.Key Revelations From the Jan. 6 HearingsCard 1 of 6Making a case against Trump. More

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      Who Is Richard Donoghue?

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      Richard P. Donoghue, who served as acting deputy attorney general in the Trump administration, was a crucial witness to President Donald J. Trump’s efforts to use the Justice Department to overturn the 2020 election results, and one of several officials there who pumped the brakes on the plan.Mr. Donoghue repeatedly pushed back on Mr. Trump’s claims of voter fraud in Georgia, Michigan, Nevada and Arizona, and he refused to go along when Mr. Trump insisted that the department simply “say that the election was corrupt” and “leave the rest to me,” according to notes Mr. Donoghue took of a Dec. 27, 2020, call with Mr. Trump and Jeffrey A. Rosen, the acting attorney general.On Thursday, Mr. Donoghue was appearing in person before the House committee investigating the Jan. 6, 2021, attack on the Capitol in a hearing at which aides said the panel would reveal new evidence of Mr. Trump’s bid to use the nation’s law enforcement apparatus to invalidate his defeat and stay in power.Much is already known about Mr. Trump’s efforts and the resistance by Mr. Donoghue and his colleagues, including that the president asked the Justice Department to send letters to state election officials warning them that there had been widespread fraud in the election and to file lawsuits to help his campaign.During a hearing on Tuesday, the House committee played audio of an interview with Mr. Donoghue in which he recounted telling Mr. Trump that there was no suitcase containing fraudulent ballots in Georgia, a popular conspiracy theory that was based on a video selectively edited and shared by Mr. Trump’s allies.Mr. Trump “kept fixating on this suitcase that supposedly had fraudulent ballots,” Mr. Donoghue said in the interview. “I said, ‘No, sir, there is no suitcase.’”Mr. Trump, in his final weeks in office, had also planned to oust Mr. Rosen, when it was clear that he did not have his support to send Georgia state legislators a letter wrongly stating that the department was seriously investigating accusations of voter fraud.Mr. Donoghue convened the department’s senior leaders over the phone, making a plan that the group would resign en masse should Mr. Rosen be fired.Mr. Trump ultimately allowed Mr. Rosen to stay. More

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      Jan. 6 Panel Says It Has New Evidence of Trump’s Pressure on Justice Dept.

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      A hearing at 3 p.m. Thursday will feature the former acting attorney general and other top officials at the department during the Trump era as witnesses.WASHINGTON — The House committee investigating the Jan. 6 attack on the Capitol plans to unveil new evidence on Thursday about how President Donald J. Trump tried to manipulate the Justice Department to help him cling to power after he lost the 2020 election, aides said on Wednesday.At its fifth public hearing this month, scheduled for 3 p.m. on Thursday, the panel plans to hear testimony from three former top Justice Department officials who are expected to lay out the ways in which Mr. Trump tried to misuse the attorney general’s office to overturn his defeat, an extraordinary instance of a president interfering with the nation’s law enforcement apparatus for his own personal ends.Committee aides said the panel would detail how Mr. Trump unsuccessfully pushed department officials to falsely declare that there was widespread fraud in the election, file lawsuits to benefit his campaign and appoint a conspiracy theorist as a special counsel to investigate the election. It will also trace his failed efforts to send false letters to state officials to subvert the election results and, finally, to replace the acting attorney general, who refused to go along with his plans.Mr. Trump ultimately backed off after agency officials threatened mass resignations, but the committee is presenting his actions as a critical strand in a multilayered effort by the former president to subvert the election.The witnesses scheduled to testify are Jeffrey A. Rosen, the former acting attorney general; Richard P. Donoghue, the former acting deputy attorney general; and Steven A. Engel, the former assistant attorney general for the Office of Legal Counsel.The Themes of the Jan. 6 House Committee HearingsMaking a Case Against Trump: The committee appears to be laying out a road map for prosecutors to indict former President Donald J. Trump. But the path to any trial is uncertain.Day One: During the first hearing, the panel presented a gripping story with a sprawling cast of characters, but only three main players: Mr. Trump, the Proud Boys and a Capitol Police officer.Day Two: In its second hearing, the committee showed how Mr. Trump ignored aides and advisers in declaring victory prematurely and relentlessly pressing claims of fraud he was told were wrong.Day Three: Mr. Trump pressured Vice President Mike Pence to go along with a plan to overturn his loss even after he was told it was illegal, according to testimony laid out by the panel during the third hearing.Day Four: The committee used its fourth hearing to show how Mr. Trump was personally involved in a scheme to put forward fake electors and highlight the pressure that state officials faced to overturn the election.Representative Adam Kinzinger, Republican of Illinois and a member of the committee, is expected to play a central role in the questioning of witnesses and presentation of evidence. He has hinted that the hearing could reveal more information about members of Congress who sought pardons after Jan. 6.The story of how Mr. Trump attempted to intervene in the workings of the Justice Department to keep himself in office has been well documented by both the Senate Judiciary Committee and the House Jan. 6 committee, but aides to the House inquiry said Thursday’s hearing will contain new revelations.Time and again, department officials told Mr. Trump after the election that his claims of widespread fraud were false, and prompted him to back down from some of his most extreme propositions.One dramatic moment came in an Oval Office meeting on Jan. 3, 2021, when Jeffrey Clark, a little-known department lawyer who had been strategizing about how to keep Mr. Trump in power, suggested that the agency issue a legal opinion to Vice President Mike Pence advising him as to what actions he could take during the joint session of Congress set for three days later, when lawmakers were to meet for the official electoral count that would confirm Joseph R. Biden Jr.’s victory.“That’s an absurd idea,” Mr. Engel interjected, according to testimony he provided to the committee. “It is not the role of the Department of Justice to provide legislative officials with legal advice on the scope of their duties.”Mr. Trump then spoke up and told the Justice Department officials, who repeatedly told him his claims of widespread fraud were false, that they were not to speak to Mr. Pence.“Nobody should be talking to the vice president here,” Mr. Trump said, according to Mr. Engel.Mr. Trump would go on to repeatedly push Mr. Pence to try to overturn the election results.Also at that meeting, Mr. Trump proposed firing Mr. Rosen, who was advising him that the 2020 election was not stolen, and replacing him with Mr. Clark, who was willing to do his bidding.“Sir, I would resign immediately,” Mr. Donoghue spoke up, according to a deposition he gave. “There is no way I’m serving one minute under this guy,” he said of Mr. Clark.Mr. Trump then turned to Mr. Engel and said, “Steve, you wouldn’t resign, would you?” Mr. Engel replied: “Absolutely I would, Mr. President. You’d leave me no choice.”The Justice Department officials were also witnesses to interactions between Pat A. Cipollone, the White House counsel, and Mr. Trump. The committee has called for Mr. Cipollone to testify publicly, but he has so far refused.Mr. Cipollone pushed back against a plan put forward by Mr. Clark, who wanted to distribute official letters to multiple state legislatures falsely alerting them that the election may have been stolen and urging them to reconsider certified election results.“That letter that this guy wants to send — that letter is a murder-suicide pact,” Mr. Cipollone told Mr. Trump, according to Mr. Donoghue. “It’s going to damage everyone who touches it. And we should have nothing to do with that letter. I don’t ever want to see that letter again.”The panel is planning at least two more hearings for July, according to its chairman, Representative Bennie Thompson, Democrat of Mississippi. Those sessions are expected to detail how a mob of violent extremists attacked Congress and how Mr. Trump did nothing to call off the violence for more than three hours. More

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      In Trump Electors Investigation, Justice Dept. Issues More Subpoenas

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      Federal prosecutors sought information from two men who had worked on behalf of the Trump campaign and a third who signed up as a Trump elector in Georgia, a state won by President Biden.The Justice Department stepped up its criminal investigation of a plan by President Donald J. Trump and his allies to create slates of so-called fake electors in a bid to keep Mr. Trump in power during the 2020 election, as federal agents delivered grand jury subpoenas on Wednesday to at least four people connected to the plan.One of those who received a subpoena, according to two people familiar with the matter, was Brad Carver, a lawyer and official of the Georgia Republican Party who claimed to be one of Mr. Trump’s electors in the state, which was won by Joseph R. Biden Jr.Another subpoena recipient was Thomas Lane, an official who worked on behalf of Mr. Trump’s campaign in Arizona and New Mexico, the people said.A third person, Shawn Flynn, a Trump campaign aide in Michigan, also got a subpoena, according to the people familiar with the matter.A fourth subpoena was issued to David Shafer, the chairman of the Georgia Republican Party, who also served as a fake elector for Mr. Trump.The Themes of the Jan. 6 House Committee HearingsMaking a Case Against Trump: The committee appears to be laying out a road map for prosecutors to indict former President Donald J. Trump. But the path to any trial is uncertain.Day One: During the first hearing, the panel presented a gripping story with a sprawling cast of characters, but only three main players: Mr. Trump, the Proud Boys and a Capitol Police officer.Day Two: In its second hearing, the committee showed how Mr. Trump ignored aides and advisers in declaring victory prematurely and relentlessly pressing claims of fraud he was told were wrong.Day Three: Mr. Trump pressured Vice President Mike Pence to go along with a plan to overturn his loss even after he was told it was illegal, according to testimony laid out by the panel during the third hearing.Day Four: The committee used its fourth hearing to show how Mr. Trump was personally involved in a scheme to put forward fake electors and highlight the pressure that state officials faced to overturn the election.Mr. Shafer’s lawyer declined to comment. None of the other three men could be reached for comment about the subpoenas.The issuance of new subpoenas was reported earlier by The Washington Post.The fake elector plan is the focus of one of two known prongs of the Justice Department’s broad grand jury investigation of Mr. Trump’s multiple and interlocking attempts to subvert the election. The other has focused on a wide cast of political organizers, White House aides and members of Congress connected in various ways to Mr. Trump’s incendiary speech near the White House that directly preceded the storming of the Capitol on Jan. 6, 2021.This latest round of activity in the Justice Department’s inquiry came amid the House Jan. 6 committee’s high-profile hearings into Mr. Trump’s efforts to reverse the outcome of the election.It also comes less than a month after an earlier round of grand jury subpoenas revealed that prosecutors were seeking information on any role that a group of pro-Trump lawyers might have played in the fake elector effort. Those lawyers included Rudolph W. Giuliani, John Eastman, Boris Epshteyn, Jenna Ellis, Kenneth Chesebro, James Troupis and Justin Clark. Although testimony to the House committee has presented evidence of the roles of some of them in the plan, including Mr. Giuliani, Mr. Eastman and Mr. Chesebro, it is not clear what role, if any, some of the others might have played.The subpoenas, issued by a grand jury sitting in Washington, have also sought records and information about other pro-Trump figures like Bernard B. Kerik, the former New York City police commissioner and a longtime ally of Mr. Giuliani.Many of the lawyers named in the subpoenas were also mentioned on Tuesday at the House select committee’s public hearing exploring Mr. Trump’s wide-ranging pressure campaign to persuade state officials to help him stay in office.At the hearing, the committee for the first time directly connected Mr. Trump to the plan, introducing a recorded deposition from Ronna McDaniel, the chairwoman of the Republican National Committee, in which she recounted how Mr. Trump called her and put Mr. Eastman on the phone “to talk about the importance of the R.N.C. helping the campaign gather these contingent electors.”The first subpoenas in the fake elector inquiry were largely sent to people in key swing states who almost took part in the plan but eventually did not for various reasons. This new round of subpoenas appears to be the first time that Trump campaign officials were brought into the investigation, marking a small but potentially significant step closer to Mr. Trump himself.The plan to create pro-Trump electors in states won by Mr. Biden was among the earliest and most expansive of several plots by Mr. Trump and his allies to overturn the results of the election. It involved lawyers, state officials, White House and campaign aides, and members of Congress.The plan was developed as Mr. Trump and his allies sought to promote baseless assertions of widespread election fraud in key swing states and persuade state officials to reverse their certification of Mr. Biden’s victory. It aimed to have the pro-Trump slates in place by the time Vice President Mike Pence oversaw the official certification of electoral votes during a joint session of Congress on Jan. 6, 2021.Mr. Trump and others close to him mounted a relentless effort in the weeks leading up to Jan. 6 to persuade Mr. Pence either to count the pro-Trump electors and hand Mr. Trump a victory in the Electoral College or to declare that the election was uncertain because competing slates of electors had been received in several states.The idea was to buy Mr. Trump more time to pursue his baseless claims of fraud or potentially to send the election to the House of Representatives, where each state delegation would get a single vote. Because more delegations were controlled by Republicans than by Democrats, Mr. Trump could have won.Adam Goldman More

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      Un juicio penal contra Donald Trump tendría desafíos para el Departamento de Justicia

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      Durante las audiencias del comité que investiga el asalto al Capitolio han surgido pruebas y testimonios que aumentan la presión para iniciar un proceso judicial contra el expresidente. Pero especialistas legales consideran que sería un caso difícil.Cuando durante la semana pasada surgieron nuevos cuestionamientos sobre un posible juicio penal contra el expresidente Donald Trump por tratar de anular las elecciones de 2020, este emitió un confuso comunicado de 12 páginas.Dicho comunicado contenía la habitual combinación de sus aseveraciones estrafalarias, exageraciones y rotundas mentiras, pero también algo que los aliados de Trump y los expertos jurídicos señalaron como llamativo y diferente: el inicio de una defensa jurídica.Casi en todas las páginas, Trump daba explicaciones de por qué estaba convencido de que le habían hecho trampa en las elecciones de 2020 y por qué tenía todo el derecho de cuestionar los resultados a través de cualquier medio disponible.Trump escribió que lo que ocurrió en el Capitolio el 6 de enero de 2021 fue resultado de un intento de los estadounidenses “de responsabilizar a las autoridades electorales por las claras señales de actividades delictivas a lo largo del proceso electoral”.Esta aseveración, aunque infundada, tenía especial significado debido al creciente interés acerca de si enfrentaría acciones penales. Si el Departamento de Justicia entablara un juicio en su contra, los fiscales tendrían que demostrar que él sabía —o debía haber sabido— que su postura se basaba en afirmaciones falsas sobre un fraude electoral generalizado o que su intento de impedir la certificación de los resultados por parte del Congreso era ilegal.Como una posible defensa, la táctica presente en el comunicado de Trump está lejos de ser una garantía para que no lo procesen y tiene problemas de credibilidad evidentes. Trump cuenta con un largo historial de que es capaz de decir lo que sea con tal de lograr sus objetivos, sin importar si es verdad o no. Y algunas de las medidas que tomó después de las elecciones de 2020, como presionar a las autoridades de Georgia para que encontraran los votos suficientes como para cambiar el resultado en ese estado a su favor, habla de un intento decidido de mantenerse en el poder y no de abordar algunos puntos débiles más generales percibidos en el sistema electoral.Pero su continua sarta de mentiras pone de manifiesto algunas de las dificultades para entablar cualquier proceso penal en su contra, a pesar de lo bien establecidos que están en este momento los hechos primordiales.Además, el comunicado también señala las medidas que Trump está tomando tras bambalinas para formar un nuevo equipo de abogados a fin de que hagan frente a una serie de investigaciones, como, por ejemplo, su campaña de presión con la que intentaba cambiar los resultados de las elecciones en Georgia y el hecho de que extrajera documentos clasificados cuando dejó el cargo.Según dos personas enteradas de este asunto, en la elaboración del borrador del documento participó Evan Corcoran, un abogado defensor para delitos de cuello blanco y exfiscal federal designado por Trump. Corcoran también ha representado a Steve Bannon, un aliado de Trump que el Departamento de Justica ha acusado de rehusarse a cooperar con el comité de la Cámara Baja que investiga los hechos del 6 de enero.Ni Corcoran ni la portavoz de Trump respondieron a la solicitud de ofrecer comentarios.El comunicado llegó en una semana en la que las audiencias del comité de la Cámara de Representantes dejaron clara la posibilidad de someter a Trump a procesos penales y civiles al enfatizar el testimonio de sus asesores y colaboradores que documentaron lo que le habían dicho, y cuándo, acerca de la validez de las acusaciones de fraude electoral y la legitimidad de su estrategia para mantenerse en el poder.En su tercera audiencia del jueves de la semana pasada, el comité argumentó que Trump había seguido adelante con el plan de hacer que el vicepresidente Mike Pence revocara de manera unilateral las elecciones de 2020 a pesar de que le habían dicho a Trump que no se contaba con bases legales para hacerlo.El Departamento de Justicia está investigando una serie de elementos relacionados con el asalto al Capitolio y con el intento más general de Trump y sus aliados para conservar la Casa Blanca pese al triunfo de Joe Biden. El fiscal general Merrick Garland no ha dado indicios de que el departamento esté armando un caso contra Trump, quien desde hace mucho tiempo ha sostenido que las investigaciones sobre el ataque del 6 de enero son partidistas e infundadas y cuya versión de los hechos no ha sido presentada en las audiencias del comité de la Cámara Baja.Pero las investigaciones del panel ya han arrojado pruebas que podrían aumentar la presión a Garland para que avance con mayor firmeza, plan de acción que conllevaría tremendas implicaciones legales y políticas. Después del acicate del Departamento de Justicia, en estos últimos días, el comité de la Cámara Baja dio señales de que ya el mes entrante comenzaría a compartir con los fiscales federales algunas transcripciones de sus entrevistas con los testigos.Greg Jacob, a la izquierda, quien fue abogado jefe del vicepresidente Mike Pence y J. Michael Luttig, un exjuez conservador, prestan su declaración en una audiencia del comité selecto de la Cámara de Representantes que investiga el asalto al Capitolio del 6 de enero.Haiyun Jiang/The New York TimesEn una demanda civil relacionada con el trabajo del comité, un juez federal concluyó en marzo que lo más probable era que Trump y un abogado que lo había asesorado, John Eastman, hubieran cometido un delito en su intento de anular las elecciones. “La ilegitimidad del plan era evidente”, concluyó en ese caso el juez David O. Carter del Tribunal de Distrito de Estados Unidos para el Distrito Central de California.Carter hizo referencia a dos delitos que, según él, era probable que estos hombres hubieran cometido: conspiración para cometer fraude contra Estados Unidos y obstruir los procedimientos del Congreso. Los miembros del comité de la Cámara Baja han hecho insinuaciones parecidas y algunos abogados han sostenido que hay probabilidades de que también acusen de sedición a Trump.No obstante, llevar a juicio con éxito las posibles acusaciones sugeridas por Carter y otras personas podría depender de establecer cuáles eran las intenciones de Trump, un asunto que, al parecer, abordó su comunicado de la semana pasada con el argumento de que él creía que su impugnación de los resultados se basaba en dudas legítimas sobre la realización de las elecciones.Daniel L. Zelenko, un abogado defensor para delitos de cuello blanco y exfiscal federal, señaló que en todos los posibles delitos que se estaban analizando relacionados con el comportamiento de Trump, el Departamento de Justicia tendría que demostrar que el expresidente tenía la intención de cometer un delito. Zelenko comentó que, aunque los nuevos detalles revelados por el comité ayudarían a los fiscales a probar sus intenciones, el gobierno seguía teniendo que afrontar una serie de otras dificultades para entablar cualquier juicio.“Lo fundamental es tener pruebas actuales de que él dijera que sabía que las elecciones no habían sido fraudulentas, pero que de todas maneras estaba tratando de mantenerse en el poder”, explicó Zelenko, copresidente del ejercicio de la defensa de delitos de cuello blanco en Crowell & Moring. “El problema con Trump es que tenemos que intentar meternos en su cabeza, y su historial de mentiras y embustes es tal, que resulta difícil determinar qué es lo que en realidad cree”.Aparte de las pruebas que el comité ya ha revelado, el panel ha recibido otros testimonios que socavan la afirmación de Trump de que pensaba que realmente había ganado las elecciones. Según dos personas informadas del asunto, Alyssa Farah Griffin, la directora de Comunicaciones de la Casa Blanca en los días posteriores a las elecciones, declaró recientemente al comité que Trump le dijo en noviembre de 2020 palabras del estilo de: ¿puedes creer que perdí contra Biden?En su audiencia del jueves de la semana pasada, el comité de la Cámara de Representantes armó un caso en el que Trump se lanzó de cabeza a un plan para que Pence anulara unilateralmente la elección a pesar de que se le había dicho a Trump que no tenía ninguna base legal.Doug Mills/The New York TimesEn una entrevista por televisión el otoño pasado, Griffin, que no respondió a una solicitud de comentarios, reconoció uno de los factores que complican establecer lo que Trump puede haber creído. Dijo que Trump podría haber cambiado de opinión después de las elecciones.“Me dijo poco después que sabía que había perdido, pero entonces, ya sabes, la gente que lo rodea…”, dijo Griffin en la CNN, refiriéndose a los asesores externos que impulsaron falsas afirmaciones de fraude electoral. “Consiguieron información delante de él, y pienso que su opinión realmente podría haber cambiado sobre eso, y eso da miedo, porque sí perdió, y los hechos están al alcance de todos”.Samuel W. Buell, profesor de Derecho en la Universidad Duke y exfiscal federal, mencionó que cualquier acción penal contra Trump tendría que comenzar por establecer que él sabía que lo que estaba haciendo no era correcto.“Hay que demostrar que sabía que lo que estaba haciendo no era correcto y que no tenía sustento legal para hacerlo”, comentó. “No digo que tenga que pensar: ‘Lo que estoy haciendo es un delito’. Se trata de probar que pensaba: ‘Sé que no tengo ningún argumento jurídico, sé que he perdido las elecciones, pero seguiré adelante con una afirmación que sé que es falsa y un plan que no tiene sustento legal’”.Las audiencias del comité de la Cámara Baja no son un juicio. El panel tiene la libertad de ser selectivo con respecto al testimonio que usa para plantear una acusación contra Trump y el expresidente no tiene aliados en el comité que puedan cuestionar a los testigos ni proporcionarle información que le sea de utilidad.Sin embargo, las audiencias han hecho hincapié en una serie de testigos que dijeron que antes del 6 de enero le habían dicho de manera directa y constante a Trump que sus aseveraciones de que un fraude electoral le hubiese costado la reelección no estaban fundamentadas.Además, el comité presentó un testimonio corto, pero posiblemente muy crucial del abogado jefe de Pence, Greg Jacob. En una declaración, Jacob le dijo al panel que, el 4 de enero de 2021, Eastman —quien estaba urdiendo un plan para que Pence impidiera o retrasara la certificación del conteo del Colegio Electoral— le dijo a Trump que este plan transgrediría la ley de conteo electoral, la cual es la ley federal que rige el proceso.En las investigaciones que se centran casi exclusivamente en la acción física, como las agresiones, los asaltos y los asesinatos, los fiscales no necesitan centrarse en probar la intención, ya que el vínculo entre la acción y el daño suele ser claro.La cuestión de la intención, sin embargo, puede ser confusa cuando el delito investigado implica una acción en la que el estado mental del acusado puede ser difícil de establecer. Los delitos que, según los expertos jurídicos, puede haber cometido Trump —obstrucción al Congreso, defraudación al pueblo estadounidense y conspiración sediciosa— caen en esa categoría.En esos casos, el gobierno se enfrenta a una serie de obstáculos que debe superar para demostrar la intención. La forma más limpia es encontrar pruebas de que el acusado sabía que estaba haciendo algo malo.En el caso de Trump, dijeron los abogados, eso podría tomar la forma de pruebas directas de que él sabía que sus afirmaciones de fraude electoral generalizado eran infundadas o que sabía que la estrategia que estaba llevando a cabo era ilegal.Si el Departamento de Justicia no pudiera establecer ninguna prueba directa de lo que Trump sabía, los fiscales tendrían que recurrir a pruebas circunstanciales. Para hacerlo, por lo general dependerían de lo que los expertos y las personas con autoridad de su alrededor le estuvieran diciendo acerca de si las elecciones en realidad habían sido fraudulentas o si sería legal el tipo de estrategias para impugnar el resultado.Los abogados explicaron que las recomendaciones de un experto casi siempre son suficientes para demostrarle al jurado lo que sabía el acusado. Pero, según ellos, esto se podría dificultar en el caso de Trump porque se sabe que, desde hace mucho tiempo, no escucha ni a los expertos ni a sus propios asesores.Debido a las dificultades de demostrar lo que Trump sabía en realidad, hay otra manera en que los fiscales podrían demostrar que no tenía buenas intenciones: probar lo que a menudo se denomina “ignorancia deliberada”.Según ese principio, el gobierno tendría que demostrar que Trump creía que existía una alta probabilidad de que los expertos y sus asesores le estuvieran diciendo la verdad cuando dijeron que las elecciones no habían sido fraudulentas, pero que él tomó medidas deliberadas para no saber por qué ellos creían eso.Zelenko comentó que entendía por qué muchos estadounidenses que observaron las audiencias estarían convencidos de que había buenas posibilidades de entablar un juicio en contra del expresidente. Pero advirtió que los criterios para usar pruebas contra un acusado son más exigentes en el tribunal, donde casi siempre los jueces insisten en que los fiscales se basen en testimonios de primera mano, se puede contrainterrogar a los testigos y los fiscales tienen que probar sus argumentos más allá de una duda razonable.Michael S. Schmidt es corresponsal en Washington y cubre investigaciones federales y de seguridad nacional. Formó parte de dos equipos que ganaron el Pulitzer en 2018: uno por informar sobre acoso sexual en el trabajo y el otro por la cobertura del presidente Trump y los vínculos de su campaña con Rusia. @NYTMikeMaggie Haberman es corresponsal de la Casa Blanca. Se unió al Times en 2015 como corresponsal de campaña y formó parte de un equipo que ganó un Pulitzer en 2018 por informar sobre los asesores de Trump y sus conexiones con Rusia. @maggieNYT More

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      Prosecute Trump? Put Yourself in Merrick Garland’s Shoes

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      The evidence gathered by the Jan. 6 committee and in some of the federal cases against those involved in the Capitol attack pose for Attorney General Merrick Garland one of the most consequential questions that any attorney general has ever faced: Should the United States indict former President Donald Trump?The basic allegations against Mr. Trump are well known. In disregard of advice by many of his closest aides, including Attorney General William Barr, he falsely claimed that the 2020 presidential election was fraudulent and stolen; he pressured Vice President Mike Pence to refuse to count certified electoral votes for Joe Biden during the electoral count in Congress on Jan. 6; and he riled up a mob, directed it to the Capitol and refused for a time to take steps to stop the ensuing violence.To indict Mr. Trump for these and other acts, Mr. Garland must make three decisions, each more difficult than the previous, and none of which has an obvious answer.First, he must determine whether the decision to indict Mr. Trump is his to make. If Mr. Garland decides that a criminal investigation of Mr. Trump is warranted, Justice Department regulations require him to appoint a special counsel if the investigation presents a conflict of interest for the department and if Mr. Garland believes such an appointment would be in the public interest.The department arguably faces a conflict of interest. Mr. Trump is a political adversary of Mr. Garland’s boss, President Biden. Mr. Trump is also Mr. Biden’s likeliest political opponent in the 2024 presidential election. Mr. Garland’s judgments impact the political fate of Mr. Biden and his own possible tenure in office. The appearance of a conflict sharpened when Mr. Biden reportedly told his inner circle that Mr. Trump was a threat to democracy and should be prosecuted, and complained about Mr. Garland’s dawdling on the matter.Even if conflicted, Mr. Garland could keep full control over Mr. Trump’s legal fate if he believes that a special counsel would not serve the public interest. Some will argue that the public interest in a fair-minded prosecution would best be served by appointment of a quasi-independent special counsel, perhaps one who is a member of Mr. Trump’s party.But no matter who leads it, a criminal investigation of Mr. Trump would occur in a polarized political environment and overheated media environment. In this context, Mr. Garland could legitimately conclude that the public interest demands that the Trump matter be guided by the politically accountable person whom the Senate confirmed in 2021 by a vote of 70-30.If Mr. Garland opens a Trump investigation and keeps the case — decisions he might already have made — the second issue is whether he has adequate evidence to indict Mr. Trump. The basic question here is whether, in the words of Justice Department guidelines, Mr. Trump’s acts constitute a federal offense and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”These will be hard conclusions for Mr. Garland to reach. He would have to believe that the department could probably convince a unanimous jury that Mr. Trump committed crimes beyond a reasonable doubt. Mr. Garland cannot rest this judgment on the Jan. 6 committee’s one-sided factual recitations or legal contentions. Nor can he put much stock in a ruling by a federal judge who, in a civil subpoena dispute — a process that requires a significantly lower standard of proof to prevail than in a criminal trial — concluded that Mr. Trump (who was not represented) “more likely than not” committed a crime related to Jan. 6.Instead, Mr. Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding administered by an independent judge, where Mr. Trump’s lawyers will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.Attorney General Merrick Garland.Jacquelyn Martin/Associated PressThe two most frequently mentioned crimes Mr. Trump may have committed are the corrupt obstruction of an official proceeding (the Jan. 6 vote count) and conspiracy to defraud the United States (in working to overturn election results). Many have noted that Mr. Trump can plausibly defend these charges by arguing that he lacked criminal intent because he truly believed that massive voter fraud had taken place.Mr. Trump would also claim that key elements of his supposedly criminal actions — his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive. Mr. Garland would need to assess how these legally powerful claims inform the applicability of criminal laws to Mr. Trump’s actions in what would be the first criminal trial of a president. He would also consider the adverse implications of a Trump prosecution for more virtuous future presidents.If Mr. Garland concludes that Mr. Trump has committed convictable crimes, he would face the third and hardest decision: whether the national interest would be served by prosecuting Mr. Trump. This is not a question that lawyerly analysis alone can resolve. It is a judgment call about the nature, and fate, of our democracy.A failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election. By contrast, the rule of law would be vindicated by a Trump conviction. And it might be enhanced by a full judicial airing of Mr. Trump’s possible crimes in office, even if it ultimately fails.And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. It would be seen by many as politicized retribution. The prosecution would take many years to conclude; would last through, and deeply impact, the next election; and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.Along the way, the prosecution would further enflame our already-blazing partisan acrimony; consume the rest of Mr. Biden’s term; embolden, and possibly politically enhance, Mr. Trump; and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department “independence and integrity” even if he prosecutes Mr. Trump in the service of those norms. And if the prosecution fails, many will conclude that the country and the rule of law suffered tremendous pain for naught.Mr. Garland’s decisions will be deeply controversial and have consequences beyond his lifetime. It is easy to understand, contrary to his many critics, why he is gathering as much information as possible — including what has emerged from the Jan. 6 committee and the prosecution of the higher-ups involved in the Capitol breach — before making these momentous judgments.Jack Goldsmith, a Harvard law professor and a senior fellow at the Hoover Institution, is a co-author of “After Trump: Reconstructing the Presidency.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      Despite Growing Evidence, a Prosecution of Trump Would Face Challenges

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      As House hearings highlighted testimony that could create more pressure to pursue a criminal case, the former president tried out a defense that strained credulity.As new questions swirled this past week about former President Donald J. Trump’s potential criminal exposure for seeking to overturn the 2020 election, Mr. Trump issued a rambling 12-page statement.It contained his usual mix of outlandish claims, hyperbole and outright falsehoods, but also something that Trump allies and legal experts said was notable and different: the beginnings of a legal defense.On nearly every page, Mr. Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available.What happened at the Capitol on Jan. 6, 2021, Mr. Trump wrote, stemmed from an effort by Americans “to hold their elected officials accountable for the obvious signs of criminal activity throughout the election.”His statement, while unfounded, carried a particular significance given the intensifying focus on whether he could face criminal charges. If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.As a potential defense, the tactic suggested by Mr. Trump’s statement is far from a guarantee against prosecution, and it presents obvious problems of credibility. Mr. Trump has a long history of saying whatever suits his purposes without regard for the truth. And some of the actions he took after the 2020 election, like pressing officials in Georgia to flip enough votes to swing the outcome in that state to his column, speak to a determined effort to hold on to power rather than to address some broader perceived vulnerability in the election system.But his continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.And the statement also reflected steps Mr. Trump is taking behind the scenes to build a new legal team to deal with an array of investigations, including into his pressure campaign to change the outcome of the election in Georgia and his taking classified documents with him when he left office.M. Evan Corcoran, a white-collar defense lawyer and former federal prosecutor brought on by Mr. Trump, was involved in drafting the document, according to two people briefed on the matter. Mr. Corcoran has also represented Stephen K. Bannon, a Trump ally who has been indicted by the Justice Department for refusing to cooperate with the House committee investigating the Jan. 6 attack.Mr. Corcoran and a spokesman for Mr. Trump did not respond to a request for comment.The statement came during a week in which the House committee’s hearings drove home Mr. Trump’s potential criminal and civil legal exposure by highlighting testimony from aides and advisers documenting what he had been told, and when, about the validity of his election fraud claims and the legality of his strategy for hanging on to power.The Themes of the Jan. 6 House Committee HearingsMaking a Case Against Trump: The committee appears to be laying out a road map for prosecutors to indict former President Donald J. Trump. But the path to any trial is uncertain.Day One: During the first hearing, the panel presented a gripping story with a sprawling cast of characters, but only three main players: Mr. Trump, the Proud Boys and a Capitol Police officer.Day Two: In its second hearing, the committee showed how Mr. Trump ignored aides and advisers in declaring victory prematurely and relentlessly pressing claims of fraud he was told were wrong.Day Three: Mr. Trump pressured Vice President Mike Pence to go along with a plan to overturn his loss even after he was told it was illegal, according to testimony laid out by the panel during the third hearing.At its third hearing on Thursday, the committee built a case that Mr. Trump had plunged ahead with a scheme to have Vice President Mike Pence unilaterally overturn the 2020 election even though Mr. Trump had been told it had no legal basis.The Justice Department is investigating a number of elements of the Capitol riot and the broader effort by Mr. Trump and his allies to keep the White House despite Joseph R. Biden Jr.’s victory. Attorney General Merrick B. Garland has given no public indication that the department is building a case against Mr. Trump, who has long contended that the investigations into the Jan. 6 attack are partisan and unfounded and whose side of the story has not been presented in the House committee’s hearings.But the panel’s investigation has already generated evidence that could increase the pressure on Mr. Garland to move more aggressively, a course of action that would carry extraordinary legal and political implications. After prodding from the Justice Department, the House committee signaled in recent days that it would start sharing some transcripts of its witness interviews with federal prosecutors as early as next month.Greg Jacob, left, who had been chief counsel for Vice President Mike Pence, and J. Michael Luttig, a conservative former judge, at a hearing on Thursday held by the House committee investigating the Jan. 6 attack.Haiyun Jiang/The New York TimesIn a civil case related to the committee’s work, a federal judge concluded in March that Mr. Trump and a lawyer who had advised him, John Eastman, had most likely committed felonies in their effort to overturn the election. “The illegality of the plan was obvious,” Judge David O. Carter of Federal District Court for the Central District of California concluded in that case.Judge Carter cited two crimes that he said the two men were likely guilty of committing: conspiracy to defraud the United States and obstructing a congressional proceeding. Members of the House committee have made similar suggestions, and some lawyers have contended that Mr. Trump could also be vulnerable to a charge of seditious conspiracy.But successfully prosecuting the potential charges suggested by Judge Carter and others could depend on establishing Mr. Trump’s intent — an issue that his statement this past week appeared to address with the argument that he believed his challenges to the outcome were grounded in legitimate questions about the conduct of the election.Daniel L. Zelenko, a white-collar defense lawyer and former federal prosecutor, said that in all of the potential crimes that were being looked at in connection with Mr. Trump’s conduct, the Justice Department would need to show that he had the intent to commit a crime. Mr. Zelenko said that while the new details revealed by the committee would help prosecutors in proving intent, the government still had a range of other issues to overcome in building any prosecution.“The key is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway,” said Mr. Zelenko, a co-chair of the white-collar defense practice at Crowell & Moring. “The problem with Trump is that you have to try and get inside his mind, and he has such a history of lying and pushing falsehoods that it makes it difficult to determine what he really believes.”Aside from the evidence the committee has already revealed, the panel has received other testimony that undermines Mr. Trump’s claim that he thought he really won the election. According to two people briefed on the matter, Alyssa Farah Griffin, the White House communications director in the days after the election, recently testified to the committee that Mr. Trump said to her in November 2020 words along the lines of: Can you believe I lost to Mr. Biden?At its hearing on Thursday, the House committee built a case that Mr. Trump had plunged ahead with a scheme to have Mr. Pence unilaterally overturn the election even though Mr. Trump had been told it had no legal basis.Doug Mills/The New York TimesIn a television interview last fall, Ms. Griffin, who did not respond to a request for comment, acknowledged one of the complicating factors in determining what Mr. Trump may have believed. She said Mr. Trump might have changed his mind in the aftermath of the election.“He told me shortly after that he knew he lost, but then, you know, folks got around him,” Ms. Griffin said on CNN, referring to outside advisers who pushed false election-fraud claims. “They got information in front of him, and I think his mind genuinely might have been changed about that, and that’s scary, because he did lose, and the facts are out there.”Samuel W. Buell, a law professor at Duke University and former federal prosecutor, said any criminal case against Mr. Trump would have to start with establishing that he had been aware that what he was doing was improper.“You need to show that he knew what he was doing was wrongful and had no legal basis,” he said. “I’m not saying that he has to think: What I’m doing is a crime. It’s proving: I know I don’t have a legal argument, I know I’ve lost the election, but I’m going ahead with a known-to-be-false claim and a scheme that has no legal basis.”The House committee’s hearings are not a trial. The panel is free to be selective in what testimony it employs to build a case against Mr. Trump, and the former president has no allies on the committee who can question witnesses or provide information helpful to him.But the hearings have highlighted a series of witnesses who said that Mr. Trump had been told directly and repeatedly ahead of Jan. 6 that there was no basis to his claims that election fraud cost him re-election.And the committee presented brief but potentially crucial testimony from Mr. Pence’s chief counsel, Greg Jacob. In a deposition, Mr. Jacob told the panel that Mr. Trump had been told on Jan. 4, 2021, by Mr. Eastman — who was pushing a plan to have Mr. Pence block or delay certification of the Electoral College count — that the scheme would violate the Electoral Count Act, the federal law governing the process.In investigations that are focused almost exclusively on physical action, like assaults, muggings and murders, prosecutors do not need to focus on proving intent since the link between the action and the harm is typically clear.The question of intent, however, can be muddy when the crime under investigation involves an action in which the defendant’s state of mind can be hard to establish. The crimes that legal experts say Mr. Trump may have committed — obstructing Congress, defrauding the American people and seditious conspiracy — fall into that bucket.In those cases, the government faces a series of hurdles it needs to clear to prove intent. The cleanest way is finding evidence that the defendant knew he or she was doing something wrong.In Mr. Trump’s case, lawyers said, that could take the form of direct evidence that he knew his assertions of widespread election fraud were baseless or that he knew the strategy he was pursuing was illegal.If the Justice Department could not establish direct evidence of what Mr. Trump knew, prosecutors would need to turn to circumstantial evidence. To do that, they would typically rely on what experts and people of authority around him were telling him about whether the election had really been stolen or what kinds of strategies for fighting the outcome would be legal.Expert advice is often enough to show a jury what a defendant knew, lawyers said. But that may be more difficult with Mr. Trump because he has such a long history of disregarding experts and his own aides, they said.Given the challenge of showing what Mr. Trump actually knew, there is one other way prosecutors could show he had a corrupt intent: proving what is often called “willful blindness.”Under that principle, the government would need to show that Mr. Trump believed there was a high probability that the experts and his aides were telling him the truth when they said the election had not been stolen, but that he took deliberate actions to avoid learning more about why they believed that.Mr. Zelenko said he understood why many Americans watching the hearings would be convinced that building a criminal case against the former president was a strong possibility. But he cautioned that the standard for using evidence against a defendant is higher in court, where judges almost always insist that prosecutors rely on firsthand testimony, witnesses can be cross-examined and prosecutors need to prove their arguments beyond a reasonable doubt. More