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      Jan. 6 Defendant Seeks to Subpoena Trump as Witness at Trial

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      The request to have the former president testify faces an uphill fight, but it illustrates efforts by defendants to place him at the center of their cases.Almost from the moment that the first rioters were arrested in connection with the violent attack on the Capitol last January, defendants have tried in various ways to blame former President Donald J. Trump for their behavior.Some have attempted to get out of jail on bail by claiming that they stormed the building because Mr. Trump said they should. Others have sought reduced sentences by arguing that they only joined the riot because they believed Mr. Trump had authorized them to do so.On Friday, however, one Jan. 6 defendant took a different and much bolder step in seeking to pull Mr. Trump into the center of his case: He and his lawyer asked a federal judge for permission to subpoena the former president and several of his allies to testify as witnesses at his trial.“It is anticipated that, when called as a witness, Donald J. Trump will testify that he and others orchestrated a carefully crafted plot to call into question the integrity of the 2020 presidential election and the validity of President Biden’s victory,” the lawyer, Samuel H. Shamansky, said in court papers filed on behalf of his client, Dustin Thompson.“Moreover, it will be established at trial that Mr. Trump and his conspirators engaged in a concerted effort to deceive the public, including defendant, into believing that American democracy was at stake if Congress was permitted to certify the election results,” the papers said.It will most likely be an uphill climb for Mr. Shamansky to get permission to subpoena Mr. Trump and force him to appear in court, a process that could also be time-consuming and involve extensive litigation.At a hearing last month, the judge in Mr. Thompson’s case, Reggie B. Walton of Federal District Court in Washington, expressed skepticism about the notion of a former president and members of his inner circle being placed by force on the witness stand. He suggested that Mr. Shamansky could just as easily make his point by playing for the jury video or audio recordings of them speaking on Jan. 6 or in the days leading up to it.The request for the subpoenas came in conjunction with a separate motion in which Mr. Shamansky notified Judge Walton that he intended to mount what is known as a public authority defense when Mr. Thompson goes on trial in April. The strategy involves defendants arguing that they were authorized to commit crimes on the advice of a federal official.A spokesman for Mr. Trump did not immediately respond to a request for comment on the proposed subpoena.At the hearing last month, Mr. Shamansky told Judge Walton that he wanted to subpoena not only Mr. Trump, but also several of his former aides and advisers, including Rudolph W. Giuliani, Stephen K. Bannon, Stephen Miller and John Eastman.Acknowledging that he would have a hard time disputing that Mr. Thompson had committed a crime on Jan. 6, Mr. Shamansky told the judge that he wanted testimony from Mr. Trump and the others in order to establish Mr. Thompson’s mind-set that day and to prove that his client had effectively been duped into breaking the law.As for the recordings Judge Walton suggested, Mr. Shamansky argued that live witnesses always played better in front of juries. He also insisted that he had a right — even a duty — to mount the strongest defense of Mr. Thompson that he could.If Mr. Shamansky gets his way, it is almost certain that the famously litigious Mr. Trump would oppose the subpoena in a bruising legal fight, which could drag out the proceedings for months.In an interview on Friday, Mr. Shamansky said if he succeeded in obtaining the subpoenas, he would not only ask Mr. Trump about his speech that day, but also seek to get his hands on private notes or messages that were used in drafting the address. He added that he knew of no legal prohibition against trying to get testimony from a former president as a material witness in a criminal case.“I’m unaware of any authority that undermines our position,” he said. “The Constitution guarantees and demands Trump’s appearance at trial.”Some legal experts seemed to agree, pointing to President Richard M. Nixon’s failed attempts in 1974 to quash a subpoena by the Watergate special prosecutor for tapes and other documents related to his case. Others noted that, in 1990, former President Ronald Reagan gave videotaped testimony during the trial of John M. Poindexter, his onetime national security adviser, who was charged with obstructing a congressional inquiry into the Iran-contra affair.“Based on the precedent of United States v. Nixon, as well as President Reagan’s testimony in the Poindexter trial, I think there is a plausible case that Trump could be required to produce documents or otherwise testify, at least in some form, in some of the Jan. 6 trials,” said Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School.Dustin Thompson, right, with his lawyer, Samuel H. Shamansky, in Columbus, Ohio, last year. Mr. Thompson was charged shortly after the Capitol attack.Joshua A. Bickel/The Columbus Dispatch, via Associated PressMr. Thompson, 37, of Columbus, Ohio, was charged soon after the Capitol attack with stealing a coat rack from inside the building and for being in a restricted area of the Capitol grounds with a onetime college classmate, Robert Lyon, who was also charged.Prosecutors later brought an additional charge against both men, accusing them of obstructing an official proceeding before Congress in which lawmakers were certifying the final count of the Electoral College vote.In an interview with The Columbus Dispatch shortly after the initial charges were filed, Mr. Shamansky said Mr. Thompson and others who went to the Capitol “got brainwashed to the point they felt duty bound to follow the encouragement of their commander in chief.” More

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      Jan. 6 Panel Examining Trump’s Role in Proposals to Seize Voting Machines

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      The House committee is looking into efforts by the former president’s outside advisers to create a legal basis for national security agencies to help reverse his defeat in 2020.WASHINGTON — The House Jan. 6 committee is scrutinizing former President Donald J. Trump’s involvement in proposals to seize voting machines after the 2020 election, including efforts to create a legal basis for directing national security agencies to take such an extreme action, according to three people with knowledge of the committee’s activities.It is not clear what evidence the committee is examining as it looks at any role Mr. Trump might have played in encouraging or facilitating the drafting of a so-called national security finding, a type of document more typically used as the basis for a presidential order to an intelligence agency to take covert action. But the committee recently received documents from the Trump White House including what court filings described as a “document containing presidential findings concerning the security of the 2020 election after it occurred and ordering various actions,” along with related notes.A document fitting that description circulated among Mr. Trump’s formal and informal advisers in the weeks following the election. It reflected baseless assertions about foreign interference in American voting systems that had been promoted most prominently by one of his outside lawyers, Sidney Powell.That document, dated Dec. 16, 2020, and titled “Presidential Findings to Preserve Collect and Analyze National Security Information Regarding the 2020 General Election,” was published last month by Politico. It used the groundless assertions about foreign interference in the vote tally to conclude that Mr. Trump had “probable cause” to direct the military to begin seizing voting machines.“We certainly intend to run to ground any evidence bearing on an effort to seize voting machines and to use the apparatus of the federal government to confiscate these machines in the service of the president’s aim to overturn the election,” said Representative Adam B. Schiff, Democrat of California and a member of the committee. “We want to fully flesh out the facts: How close did this come to being operationalized? What kind of pushback did they receive? Who was a part of this particular scheme? We want to answer all those questions.”The New York Times reported on Monday that Mr. Trump was more directly involved than previously known in exploring proposals championed by outside advisers to seize voting machines as he grasped unsuccessfully for evidence of fraud that would help him reverse his defeat in the 2020 election.Those attempts included directing his personal lawyer, Rudolph W. Giuliani, to ask the Department of Homeland Security if it could legally take control of voting machines in key swing states — Kenneth T. Cuccinelli II, the acting deputy secretary, said no — and raising with Attorney General William P. Barr the question of whether the Justice Department could seize the machines, a query that Mr. Barr rejected, according to people familiar with the episodes.Mr. Cuccinelli, who had told Mr. Giuliani that the Homeland Security Department did not have the authority to audit or impound the machines, later encountered Mr. Trump at a meeting on another topic. Mr. Trump again raised with him, in passing, the idea of the department seizing the machines, and Mr. Cuccinelli reiterated that there was no legal authority for doing so, according to a person familiar with the exchange.The outside advisers had earlier pushed a plan under which Mr. Trump would direct the Pentagon to seize the voting machines, an idea that was killed by White House officials and Mr. Giuliani.“It is alarming that the former president apparently seriously contemplated extraordinary and legally not permitted courses of action to seize voting equipment from states and localities,” said Representative Zoe Lofgren, Democrat of California and a member of the committee.The panel for weeks has been studying the actions of Michael T. Flynn, a former national security adviser to Mr. Trump who investigators say was involved in discussions about seizing voting machines, declaring a national emergency and invoking certain national security emergency powers, including during a meeting in the Oval Office on Dec. 18.Mr. Flynn also gave an interview to the right-wing media site Newsmax a day earlier in which he talked about the purported precedent for deploying military troops and declaring martial law to “rerun” the election.At the Dec. 18 meeting, Patrick Byrne, the former chief executive of Overstock.com who funded many of the efforts to challenge the election, said he, Mr. Flynn and Ms. Powell decided they would get into the White House without an appointment “by hook or by crook” to present their plans to Mr. Trump. He said a junior staffer let them in the building, and eventually they got close enough to the Oval Office that Mr. Trump saw them and called them in.Once inside, the group pitched Mr. Trump on their plans for him to sign an executive order for the National Guard to take control of voting machines and for Ms. Powell to be appointed a special counsel overseeing election integrity.“We pointed out that, it being Dec. 18, if he signed the paperwork we had brought with us, we could have the first stage (recounting the Problematic 6 counties) finished before Christmas,” Mr. Byrne wrote of the episode in a book, referring to portions of contested swing states that Mr. Trump had lost.Mr. Byrne wrote that Mr. Flynn had drafted a “beautiful operational plan” that just needed “one signature from the president.” He described various versions of the plan, including an option for the U.S. Marshals to intervene and another for Mr. Trump to “have the National Guard rerun the elections in those six states.”He described White House lawyers and officials as fighting the plans in the meeting, including the White House counsel, Pat A. Cipollone, who thundered, “He does not have the authority to do this!”Representative Jaime Raskin, Democrat of Maryland and a member of the Jan. 6 committee, said the panel is trying to understand the “whole picture” of the plan to seize voting machines and how it relates to other efforts to keep Mr. Trump in power, such as the former president’s pressure campaign on Congress and former Vice President Mike Pence to reject electors from states won by President Biden.“His overriding objective was to overturn the election. He said that as recently as this weekend,” Mr. Raskin said of Mr. Trump. “He set into motion a range of tactical ploys to accomplish his goal.”Representative Jamie Raskin, Democrat of Maryland, said outsider advisers’ proposals to Mr. Trump to use federal agencies to seize voting machines were “the stuff of dictators and banana republics.”Stefani Reynolds for The New York TimesMr. Raskin added: “It’s hard to imagine a more outrageous federal assault on voting rights than a presidential seizure of voting machines without any action by Congress at all and no basis in law. That is the stuff of dictators and banana republics.”The extraordinary plan to mobilize the country’s national security agencies to take control of voting machines required an equally extraordinary first step. Phil Waldron, a retired Army colonel who was an ally of Mr. Flynn and Ms. Powell, revealed in a podcast interview last year that the gambit initially hinged on a report about foreign interference in the election that John Ratcliffe, the director of national intelligence at the time, was bound by congressional mandate to present to lawmakers by Dec. 18, 2020.Key Figures in the Jan. 6 InquiryCard 1 of 19The House investigation. More

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      Justice Dept. Is Reviewing Role of Fake Trump Electors, Top Official Says

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      Lisa O. Monaco, the deputy attorney general, told CNN that she could not “say anything more on ongoing investigations.”WASHINGTON — The Justice Department is investigating the fake slates of electors that falsely declared Donald J. Trump the victor of the 2020 election in seven swing states that Joseph R. Biden Jr. had in fact won, a top agency official said on Tuesday.“Our prosecutors are looking at those, and I can’t say anything more on ongoing investigations,” Lisa O. Monaco, the deputy attorney general, said in an interview with CNN.The false certificates appear to have been part of an effort by Mr. Trump’s allies to reverse his defeat in the presidential election. Even as election officials in the seven contested states sent official lists of electors who had voted for Mr. Biden to the Electoral College, the fake slates claimed Mr. Trump was the winner in an apparent bid to subvert the election outcome.Lawmakers, state officials and the House committee investigating the Jan. 6 riot have asked the Justice Department to look into the role played by those fake electors and the documents they submitted to the National Archives on Dec. 14, 2020.In some cases, top Republican Party officials in those seven states signed the false documents, according to copies posted online last March by American Oversight, a nonprofit watchdog group.“The phony electors were part of the plan to create chaos on Jan. 6, as a pretext for a contingent election,” said Representative Jamie Raskin, Democrat of Maryland and a member of the committee.“The fake electoral slates were an effort to create the illusion of contested state results,” Mr. Raskin said. That, he added, would have given Mike Pence, who as vice president presided over Congress’s count of electoral votes on Jan. 6, “a pretext for unilateral rejection of electors.”In Michigan, Dana Nessel, the attorney general, gave federal prosecutors information from her yearlong investigation into the matter. She has said that she believes there is enough evidence to charge 16 Republicans in her state with submitting the fake certificates and falsely claiming that they were official electors for the state.And Hector Balderas Jr., the attorney general of New Mexico, and a local prosecutor in Wisconsin also asked the Justice Department to review the matter.If investigators determine that Mr. Trump’s allies created the fake slates to improperly influence the election, they could in theory be charged with falsifying voting documents, mail fraud or even a conspiracy to defraud the United States.It is unclear whether the Republican Party officials and others who submitted the false documents did so on their own or at the behest of the Trump campaign.“The people who pretended to be official electors in states that were won by Biden were undoubtedly guilty of fraud on the Constitution and on the democracy,” Mr. Raskin said. “It’s a trickier question whether they are guilty of either common-law fraud, state statutory fraud, federal mail fraud or some other offense.”Luke Broadwater More

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      Texas Man Charged With Threatening to Kill Georgia Election Officials

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      A man accused of using Craigslist to call for the assassination of election officials is the first to be charged by the Justice Department’s task force on election threats.WASHINGTON — The Justice Department on Friday charged a Texas man with publicly calling for the assassination of Georgia’s election officials on the day before the Jan. 6 attack on the Capitol.The case is the first brought by the department’s Election Threats Task Force, an agency created last summer to address threats against elections and election workers. Federal prosecutors accused the man, Chad Christopher Stark, 54, of Leander, Texas, of calling for “Georgia Patriots” to “put a bullet” in a Georgia election official the indictment refers to as Official A.Mr. Stark, according to the three-page indictment, made the threat in a post on Craigslist, the online message board, while then-President Donald J. Trump and his allies were putting public pressure on Brad Raffensperger, the Georgia secretary of state who certified Mr. Trump’s defeat in Georgia to Joseph R. Biden Jr.“Georgia Patriots it’s time for us to take back our state from these Lawless treasonous traitors,” Mr. Stark wrote, according to the indictment. “It’s time to invoke our Second Amendment right it’s time to put a bullet in the treasonous Chinese [Official A]. Then we work our way down to [Official B] the local and federal corrupt judges.”Mr. Stark was charged with one count of communicating interstate threats.The Craigslist posting came at a moment of intense political pressure against election officials in battleground states. Mr. Trump had phoned Mr. Raffensperger on Jan. 2 last year and demanded that he “find” nearly 12,000 votes to overturn Mr. Biden’s victory in Georgia. The posting was published on Jan. 5, a day before a Trump-inspired crowd attacked the United States Capitol in an effort to block Congress from certifying Mr. Biden as the next president.On Thursday, a district attorney in Atlanta asked a judge to convene a special grand jury to help a criminal investigation into Mr. Trump’s attempts to overturn the 2020 election results in Georgia. If the investigation proceeds, legal experts say that the former president’s potential criminal exposure could include charges of racketeering or conspiracy to commit election fraud.Mr. Raffensperger on Friday did not confirm if he was among the election officials targeted.“I strongly condemn threats against election workers and those who volunteer in elections,” he said in a statement. “These are the people who make our democracy work.”Kenneth A. Polite Jr., the head of the Justice Department’s Criminal Division, said on Friday that the task force is reviewing over 850 reports of threats to election officials and has opened dozens of criminal investigations.During the 2020 election cycle and in its immediate aftermath, election workers “came under unprecedented verbal assault for doing nothing more than their jobs,” Mr. Polite told reporters Friday. “As the attorney general and deputy attorney general have both emphasized previously: We will not tolerate the intimidation of those who safeguard our electoral system.”The task force, created last June by the deputy attorney general, Lisa O. Monaco, developed a system to log and track all reported threats to election workers and F.B.I. agents, and federal prosecutors were trained to take in, assess and investigate the allegations. Mr. Polite said the task force has prioritized finding ways to enhance security for state and local election workers.The Texas case represents the task force’s first indictment and arrest. Mr. Polite declined to elaborate on what Mr. Stark may have planned to do.“The communication here speaks for itself,” Mr. Polite said, referring to Mr. Stark’s Craigslist post, which offered $10,000 and called for “Patriots” to “exterminate these people.”In addition to the two Georgia election officials, Mr. Stark’s Craigslist post also threatened a third Georgia official.Key Figures in the Jan. 6 InquiryCard 1 of 17The House investigation. More

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      Before Elections, Georgia Republicans Again Consider Voting Restrictions

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      A sweeping 2021 law drew a legal complaint from the Justice Department. Legislators in the state are considering several new measures focused on ballot access and fraud investigations.ATLANTA — Butch Miller, a Republican leader of the Georgia State Senate, is running for lieutenant governor and faces a tough fight this spring against a primary opponent backed by former President Donald J. Trump.So perhaps it is no surprise that Mr. Miller, a co-sponsor of a sweeping and restrictive state voting law last year, has once again jumped into the fray, promoting a new measure to prohibit the use of drop boxes for absentee ballots, which he says would increase security — though no problems with their use by voters have been verified.“Drop boxes are the weakest link in our election security,” Mr. Miller said in a statement. “This change removes that weakest link without doing anything to prevent access. It’s actually easier to vote early in person — and we provide far more days than most states for that.”Georgia was a key to President Biden’s victory as well as the Democratic takeover of the Senate, and this is the second year that the state’s Republicans are focused on voting restrictions. Mr. Miller’s proposal is among a raft of new bills that underscore how much Republicans have embraced Mr. Trump’s false narrative that voter fraud cost him the 2020 election.One measure under consideration would allow Georgians to use paper ballots if they have concerns about the recently purchased touch-screen voting machines that were the subject of fantastical fraud claims promulgated by some of Mr. Trump’s supporters.Another proposal would allow the Georgia Bureau of Investigation to open inquiries into allegations of voter fraud. Yet another would create a constitutional amendment to prevent noncitizens from voting — even though they are already barred from voting under existing state law.An absentee ballot box in Atlanta before the 2020 general election. Republicans have zeroed in on the Democratic stronghold with an investigation into the Fulton County election board. Lynsey Weatherspoon for The New York TimesAt the same time, the elections board in Fulton County, the most populous in the state and a Democratic stronghold, is the subject of a state investigation of its management practices. In theory, this investigation could lead to a Republican-directed takeover of the local election board — one that was made possible by the 2021 election law.The investigation, and the new proposals before the Republican-controlled legislature, has triggered fresh anger among Democrats who believe that the measures could contribute to an already unfair playing field in a state where numerous Trump-backed candidates are running for statewide offices.“The most disturbing thing is that the people who have an iron grip on power in the General Assembly believe that they have to continue to suppress voting in order to maintain that iron grip,” said David Worley, a Democrat and former member of the state elections board. “And they’re willing to try any method at hand to do that.”Though Republicans dominate the state legislature, some of the proposals may prove to be, at most, performative gestures by lawmakers eager to show the party’s base that they are responsive to Trump-fueled concerns about voter fraud. The measure that would expand the role of the state investigations bureau, backed by the powerful House speaker, David Ralston, may have the greatest chance of success.Gov. Brian Kemp, a Republican, sounded a less than enthusiastic note this week about going much further than the 2021 voting law, which he called “the No. 1-ranked elections integrity act in the country.”More than any other state, Georgia was the linchpin of Democrats’ fortunes in 2020, said Larry Sabato, a veteran political analyst and the director of the University of Virginia Center for Politics. The Republican stronghold not only flipped for Mr. Biden but delivered the Senate to him.“That’s why the new voting rules in Georgia and elsewhere matter so much,” he said. “Will they shave just enough votes from the Democratic column to put Republicans firmly back in the driver’s seat? If the G.O.P. sees that no penalty is paid for voter suppression, surely that will encourage Republicans to do it wherever they can get away with it.”He added: “In both 2022 and 2024, Georgia is going to be the canary in the coal mine. And it’s a pretty damn big canary.”State Senator Mike Dugan of Georgia shook hands last year with a fellow Republican state senator, Jeff Mullis, after the passage of a bill that would enact new voting restrictions. Ben Gray/Associated PressIn a year that saw Republican-led legislatures nationwide pile new restrictions on voting, the elections law that Georgia lawmakers passed last spring was less notable for its severity than for its specificity. The measure took dead aim at the record 1.3 million absentee votes cast the previous November, disproportionately by Democrats. It did so by sharply reining in the use of drop boxes that were favored by mail-in voters, imposing ID requirements on absentee ballots and raising stiff barriers to the distribution of mail-in ballot applications by both local officials and voting drives.Atop that, the law allowed for state takeovers of county election boards, banned mobile voting sites in heavily Democratic Atlanta and even barred residents from providing food and water to voters waiting in line at the polls.The 2021 statute drew a number of legal challenges, including by the U.S. Department of Justice, which argues that the law violates the federal Voting Rights Act by making it harder to vote and that it was racially motivated. Major League Baseball moved its All-Star Game out of the state in protest.The state law, as well as federal voting rights legislation praised by Mr. Biden in a visit to Atlanta this week, is expected to be front and center in upcoming statewide campaigns. The governor’s race is likely to pit the country’s best-known voting rights advocate, Stacey Abrams, a Democrat, against either Mr. Kemp, whom Ms. Abrams has openly accused of voter suppression in her 2018 race against him, or former Senator David Perdue, Mr. Kemp’s Republican primary challenger, who has echoed Mr. Trump’s baseless fraud claims.In Atlanta on Tuesday, President Biden urged passage of federal legislation to protect the right to vote and the integrity of elections.Doug Mills/The New York TimesOn Tuesday, Mr. Kemp, in a news conference preceding Mr. Biden’s speech, defended the 2021 election law, saying that the Biden administration had “lied” about it — a reference to Mr. Biden’s untrue assertion that the law “ends voting hours early.”He blamed Mr. Biden, Ms. Abrams and Vice President Kamala Harris for the backlash to the law, including the loss of the All-Star Game, which he said had cost the state $100 million. He warned that the federal voting rights laws Mr. Biden was pushing for amounted to a political grab by Democrats.“Make no mistake,” he said, “Georgia is ground zero for the Biden-Harris assault on election integrity, as well as an attempt to federalize everything from how hard-working Georgians run their businesses, to what our kids are taught in school, to how we run elections.”Mr. Kemp and Brad Raffensperger, Georgia’s Republican secretary of state, have both earned places atop Mr. Trump’s list of enemies for defying the former president’s demands that they help overturn his narrow electoral loss in Georgia.The Trump InvestigationsCard 1 of 6Numerous inquiries. More

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      Prosecutors Move Quickly on Jan. 6 Cases, but Big Questions Remain

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      In the year since the assault on the Capitol by a pro-Trump mob, more than 700 people have been arrested, with little public indication from the Justice Department of how high the investigation might reach.By almost any measure, the criminal investigation of the Jan. 6 attack on the Capitol is a prosecutorial effort of unparalleled complexity and scope.For an entire year, federal agents in almost every state have been poring over mounting stacks of tipster reports, interviews with witnesses, public social media posts and private messages obtained by warrants. They have also collected nearly 14,000 hours of video — from media outlets, surveillance cameras and police-worn body cameras — enough raw footage that it would take a year and a half of around-the-clock viewing to get through it.While the Justice Department has called the inquiry one of the largest in its history, traditional law enforcement officials have not been acting alone. Working with information from online sleuths who style themselves as “Sedition Hunters,” the authorities have made more than 700 arrests — with little sign of slowing down.The government estimates that as many as 2,500 people who took part in the events of Jan. 6 could be charged with federal crimes. That includes more than 1,000 incidents that prosecutors believe could be assaults.As of this week, more than 225 people have been accused of attacking or interfering with the police that day. About 275 have been charged with what the government describes as the chief political crime on Jan. 6: obstructing Congress’s duty to certify the 2020 presidential vote count. A little over 300 people have been charged with petty crimes alone, mostly trespassing and disorderly conduct.But a big question hangs over the prosecutions: Will the Justice Department move beyond charging the rioters themselves?So far, the department has provided no public indication of the degree to which it might be pursuing a case against former President Donald J. Trump and the circle of his allies who helped inspire the chaos with their baseless claims of election fraud. Attorney General Merrick B. Garland is scheduled to give a speech on Wednesday, one day before the anniversary of the attack on the Capitol, but is not expected to provide any signals about the direction of the department’s investigation. A spokeswoman said he would not address any specific cases or individuals.On Capitol Hill, the House select committee on Jan. 6 is interviewing witnesses and has issued subpoenas to a number of high-profile figures allied with Mr. Trump. And with Mr. Garland and the Justice Department remaining mum about their intentions, members of the committee have signaled a willingness to exert pressure on the department, saying they would consider making criminal referrals if their investigation turns up evidence that could support a prosecution against Mr. Trump or others.Even the prosecutions of those who rioted at the Capitol have presented an array of moral and legal challenges that have bedeviled judges, prosecutors and defense lawyers.Overworked courts have tried to balance the laborious exchange of discovery materials with speedy trial protections and to manage the bleak conditions at Washington’s local jails where some defendants are being held without bail. They have also faced a fundamental, underlying tension: how to mete out justice on an individual level to hundreds of defendants who together helped form a violent mob.Jacob Chansley, the so-called QAnon Shaman, was sentenced to 41 months.Erin Schaff/The New York TimesPleas and SentencesWith rare speed for a large-scale prosecution, more than 160 people — or slightly more than 20 percent of all who have been charged — have pleaded guilty at this point. Of those, not quite half have already been sentenced.A few weeks ago, Robert Palmer, a Florida man who hurled a fire extinguisher at police officers, was sentenced to more than five years in prison, the longest term handed down so far. In November, one of the most familiar figures in the attack — Jacob Chansley, the so-called QAnon Shaman, who breached the Senate floor in a horned helmet with a fur draped over his shoulders — was sentenced to 41 months, a term he is appealing.Beneath the headlines, however, there has been a steady stream of penalties for lower-profile defendants: bricklayers, grandmothers, college students, artists, church leaders and long-haul truckers who, by and large, have admitted to little more than illegally entering the Capitol.Many, if not most, have avoided incarceration, sentenced to probation or stints of home confinement. Others have received only modest sentences, ranging from a few weeks to a few months.In court, those accused of minor crimes have almost always expressed remorse, saying their behavior was foolish, embarrassing or out of character. Some have broken into tears or, in one case, physically collapsed. Others have vowed never to attend a political rally again.Federal judges have taken slightly different positions on how to punish the defendants. Judge Trevor N. McFadden, appointed by Mr. Trump, often prefaces his sentences by calling the events that day “a national embarrassment” — though he has frequently declined to jail petty offenders. Judge Tanya S. Chutkan, an Obama appointee, has often given sentences higher than those requested by the government. Her go-to phrase: “There must be consequences.”Judge Amit P. Mehta told John Lolos, a defendant clearly steeped in election fraud conspiracies, that not only had he been lied to, but those who had done the lying were not “paying the consequences.”“Those who orchestrated Jan. 6 have in no meaningful sense been held accountable,” said Judge Mehta, another Obama appointee. “In a sense, Mr. Lolos, I think you are a pawn.”Prosecutors are using an unusual law to charge many of the rioters: the obstruction of an official proceeding before Congress.Pool photo by Erin SchaffLegal ChallengesFrom the start, prosecutors faced a unique legal problem: Never before had members of Congress been forced from the House and Senate floors while finalizing the transition of presidential power. What law should be used to charge this crime?The government settled on an unusual obstruction law — the obstruction of an official proceeding before Congress. It brought the charge against scores of people believed to have disrupted the democratic process, often alongside more traditional counts of trespassing, vandalism and assault.The obstruction law, which carries a maximum penalty of 20 years in prison, had a few advantages. First, it allowed the authorities to avoid deploying more politically fraught — and harder-to-prove — counts like sedition or insurrection.It also permitted prosecutors to home in on the specific behavior of defendants and judge how much their actions contributed to the chaos that day. If someone went deep into the Capitol, say, or took some other action that helped to chase officials from their duties, chances are they have been charged with an obstruction count.But many defense lawyers have claimed the law was wrongly used.Passed in 2002 as part of the Sarbanes-Oxley Act, which sought to clamp down on corporate malfeasance, the measure was initially intended to prohibit things like shredding documents or tampering with witnesses in congressional inquiries. Defense lawyers have argued that prosecutors have stretched the law beyond its scope and used it to criminalize behavior that too closely resembles ordinary protest protected by the First Amendment.In the past few weeks, however, five federal judges have ruled that the law is valid, and it now seems certain it will be permitted in scores of Jan. 6 prosecutions, including some that will soon go to trial.More than 160 people have pleaded guilty so far to charges stemming from the riot. The first trials are scheduled to begin in February.Erin Schaff/The New York TimesTrials to Begin SoonThe earliest Capitol riot trials are scheduled to begin next month. When the proceedings start, jurors will most likely get a glimpse of how the government believes members of the mob worked together.The first trial, set to begin on Feb. 24, will focus on Robert Gieswein of Colorado, a self-proclaimed militiaman charged with assaulting officers with a chemical spray.Key Figures in the Jan. 6 InquiryCard 1 of 10The House investigation. More

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      Will Donald Trump Get Away With Inciting an Insurrection?

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      In his nine months in office, Attorney General Merrick Garland has done a great deal to restore integrity and evenhanded enforcement of the law to an agency that was badly misused for political reasons under his predecessor. But his place in history will be assessed against the challenges that confronted him. And the overriding test that he and the rest of the government face is the threat to our democracy from people bent on destroying it.Mr. Garland’s success depends on ensuring that the rule of law endures. That means dissuading future coup plotters by holding the leaders of the insurrection fully accountable for their attempt to overthrow the government. But he cannot do so without a robust criminal investigation of those at the top, from the people who planned, assisted or funded the attempt to overturn the Electoral College vote to those who organized or encouraged the mob attack on the Capitol. To begin with, he might focus on Mark Meadows, Steve Bannon, Rudy Giuliani, John Eastman and even Donald Trump — all of whom were involved, in one way or another, in the events leading up to the attack.Almost a year after the insurrection, we have yet to see any clear indicators that such an investigation is underway, raising the alarming possibility that this administration may never bring charges against those ultimately responsible for the attack.While the Justice Department has filed charges against more than 700 people who participated in the violence, limiting the investigation to these foot soldiers would be a grave mistake: As Joanne Freeman, a Yale historian, wrote this month about the insurrection, “Accountability — the belief that political power holders are responsible for their actions and that blatant violations will be addressed — is the lifeblood of democracy. Without it, there can be no trust in government, and without trust, democratic governments have little power.”The legal path to investigate the leaders of the coup attempt is clear. The criminal code prohibits inciting an insurrection or “giving aid or comfort” to those who do, as well as conspiracy to forcibly “prevent, hinder or delay the execution of any law of the United States.” The code also makes it a crime to corruptly impede any official proceeding or deprive citizens of their constitutional right to vote.Based purely on what we know today from news reports and the steady stream of revelations coming from the House select committee investigating the attack, the attorney general has a powerful justification for a robust and forceful investigation into the former president and his inner circle. As White House chief of staff, Mark Meadows was intimately involved in the effort to overturn the election. He traveled to Georgia last December, where he apparently laid the groundwork for the phone call in which the president pressured Georgia’s secretary of state, Brad Raffensperger, to “find 11,780 votes.” Representative Jim Jordan of Ohio reportedly promoted a scheme to pressure Vice President Mike Pence to reject duly certified Joe Biden electors. And from their war room at the Willard Hotel, several members of the president’s inner circle hatched the legal strategy to overturn the results of the election.The president himself sat back for three hours while his chief of staff was barraged with messages from members of Congress and Fox News hosts pleading with him to have Mr. Trump call off the armed mob whose violent passion he had inflamed. That evidence, on its own, may not be enough to convict the former president, but it is certainly enough to require a criminal investigation.And yet there are no signs, at least in media reports, that the attorney general is building a case against these individuals — no interviews with top administration officials, no reports of attempts to persuade the foot soldiers to turn on the people who incited them to violence. By this point in the Russia investigation, the special counsel Robert Mueller had indicted Paul Manafort and Rick Gates and secured the cooperation of George Papadopoulos after charging him with lying to the F.B.I. The media was reporting that the special counsel’s team had conducted or scheduled interviews with Mr. Trump’s aides Stephen Miller and Mr. Bannon, as well as Attorney General Jeff Sessions.Of course, there is no way to know for sure whether Mr. Garland’s Department of Justice is investigating the leaders of the attack behind closed doors. Justice Department policy does not permit announcing investigations, absent exceptional circumstances. Mr. Garland, unlike his predecessor, plays by the book, keeping quiet about investigations until charges are filed. But the first of the rioters to plead guilty began cooperating with the Justice Department back in April. If prosecutors have been using their cooperation to investigate the top officials and operatives responsible for the siege of the Capitol and our democracy, there would likely be significant confirmation in the media by now.It is possible that the department is deferring the decision about starting a full-blown investigative effort pending further work by the House select committee. It is even conceivable that the department is waiting for the committee’s final report so that federal prosecutors can review the documents, interviews and recommendations amassed by House investigators and can consider any potential referrals for criminal prosecution.But such an approach would come at a very high cost. In the prosecution business, interviews need to happen as soon as possible after the events in question, to prevent both forgetfulness and witness coordination to conceal the truth. A comprehensive Department of Justice probe of the leadership is now more urgently needed than ever.It is also imperative that Mr. Trump be included on the list of those being investigated. The media has widely reported his role in many of the relevant events, and there is no persuasive reason to exclude him.First, he has no claim to constitutional immunity from prosecution. The Department of Justice’s Office of Legal Counsel has recognized such immunity only for sitting presidents because a criminal trial would prevent them from discharging the duties of their office. Mr. Trump no longer has those duties to discharge.Nor is exclusion of the former president remotely justified by the precedent President Gerald Ford set in pardoning Richard Nixon to help the country “heal” from Watergate. Even our proud tradition of not mimicking banana republics by allowing political winners to retaliate against losers must give way in the wake of violence perpetrated to thwart the peaceful transition of power. Refusing to at least investigate those who plot to end democracy — and who would remain engaged in efforts to do so — would be beyond foolhardy.Furthermore, the pending state and local investigations in New York and Atlanta will never be able to provide the kind of accountability the nation clearly needs. The New York case, which revolves around tax fraud, has nothing to do with the attack on our government. The Atlanta district attorney appears to be probing Mr. Trump’s now infamous call to Mr. Raffensperger. But that is just one chapter of the wrongdoing that led up to the attack on the Capitol.Significantly, even if the Atlanta district attorney is able to convict Mr. Meadows and Mr. Trump for interfering in Georgia’s election, they could still run for office again. Only convicting them for participating in an insurrection would permanently disqualify them from office under Section 3 of the 14th Amendment.Some have expressed pessimism that the Department of Justice would be able to convict Mr. Trump. His guilt would ultimately be for a jury to decide, and some jurors might believe he deluded himself into believing his own big lie and thus genuinely thought he was saving, rather than sabotaging, the election. But concerns about a conviction are no reason to refrain from an investigation. If anything, a federal criminal investigation could unearth even more evidence and provide a firmer basis for deciding whether to indict.To decline from the outset to investigate would be appeasement, pure and simple, and appeasing bullies and wrongdoers only encourages more of the same. Without forceful action to hold the wrongdoers to account, we will likely not resist what some retired generals see as a march to another insurrection in 2024 if Mr. Trump or another demagogue loses.Throughout his public life, Mr. Garland has been a highly principled public servant focused on doing the right thing. But only by holding the leaders of the Jan. 6 insurrection — all of them — to account can he secure the future and teach the next generation that no one is above the law. If he has not done so already, we implore the attorney general to step up to that task.Laurence H. Tribe (@tribelaw) is a university professor emeritus at Harvard Law School. Donald Ayer (@DonaldAyer6) was a U.S. attorney in the Reagan administration and deputy attorney general in the George H.W. Bush administration. Dennis Aftergut (@dennisaftergut) is a former assistant U.S. attorney.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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      in Elections

      Jan. 6 Committee Weighs Possibility of Criminal Referrals

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      The House panel is examining whether there is enough evidence to recommend that the Justice Department pursue cases against Donald J. Trump and others.When the House formed a special committee this summer to investigate the Jan. 6 Capitol assault, its stated goal was to compile the most authoritative account of what occurred and make recommendations to ensure it never happens again.But as investigators sifted through troves of documents, metadata and interview transcripts, they started considering whether the inquiry could yield something potentially more consequential: evidence of criminal conduct by President Donald J. Trump or others that they could send to the Justice Department urging an investigation.That move — known as sending a criminal referral — has no legal weight, as Congress has little ability to tell the Justice Department what investigations it should undertake. But it could have a substantial political impact by increasing public pressure on Attorney General Merrick B. Garland, who in his first year in office has largely sidestepped questions about what prosecutors are doing to examine the conduct of Mr. Trump and his aides as they promoted baseless allegations of voter fraud.The questions of criminality go far beyond the contempt of Congress referrals that the House has sent to the Justice Department for Mr. Trump’s former chief strategist, Stephen K. Bannon, and his former chief of staff, Mark Meadows, for their refusal to cooperate with the investigation. (Federal law requires prosecutors to bring contempt of Congress charges before a grand jury upon receiving such a referral.)According to people briefed on their efforts, investigators for the committee are looking into whether a range of crimes were committed, including two in particular: whether there was wire fraud by Republicans who raised millions of dollars off assertions that the election was stolen, despite knowing the claims were not true; and whether Mr. Trump and his allies obstructed Congress by trying to stop the certification of electoral votes.It is not clear what, if any, new evidence the committee has that might support a criminal referral, when and how it will determine whether to pursue that option and whether the committee could produce a case strong enough to hold up against inevitable accusations that it acted in a partisan manner.Behind the scenes, the committee’s day-to-day work is being carried out by a team of 40 investigators and staff members, including former federal prosecutors. The panel has obtained more than 30,000 records and interviewed more than 300 witnesses, including about a dozen last week whom committee members say provided “key” testimony.In recent weeks, the committee has publicly signaled its interest in the question of criminality. Shortly after obtaining from Mr. Meadows 9,000 pages of documents — including text messages and a PowerPoint presentation — the panel’s top Republican, Representative Liz Cheney of Wyoming, read from the criminal code at a televised hearing.She suggested that Mr. Trump, by failing to stop the violence at the Capitol on Jan. 6, might have violated the federal law that prohibits obstructing an official proceeding before Congress.“We know hours passed with no action by the president to defend the Congress of the United States from an assault while we were trying to count electoral votes,” Ms. Cheney said, adding: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”Understand the U.S. Capitol RiotOn Jan. 6, 2021, a pro-Trump mob stormed the Capitol.What Happened: Here’s the most complete picture to date of what happened — and why.Timeline of Jan. 6: A presidential rally turned into a Capitol rampage in a critical two-hour time period. Here’s how.Key Takeaways: Here are some of the major revelations from The Times’s riot footage analysis.Death Toll: Five people died in the riot. Here’s what we know about them.Decoding the Riot Iconography: What do the symbols, slogans and images on display during the violence really mean?The question is one of the most significant to emerge in the first six months of the investigation.The panel has nine House members — including two Republicans — and is modeling itself on the commission that investigated the Sept. 11, 2001, terrorist attacks. The committee plans to produce the authoritative report about Jan. 6.It plans to hold televised hearings early next year to lay out for the public how the pro-Trump “Stop the Steal” movement helped lead to the Capitol riot. And it ultimately may propose changes to federal laws, toughening statutes to rein in a president’s conduct and overhauling the Electoral Count Act, which Mr. Trump and his allies sought to exploit in his attempt to cling to power.One of the challenges the committee faces is that so much has been reported about Mr. Trump’s efforts to hold onto power and the attacks themselves. So far, the numerous disclosures about the role of Mr. Trump, his aides and others who promoted the baseless idea that the election had been stolen from him have had little impact on his Republican support in Congress.But a credible criminal referral could provide the committee an opportunity to underscore the gravity of what happened while potentially subjecting Mr. Trump and others to intensified legal scrutiny.Although congressional investigators have no powers to charge a crime, their ability to subpoena documents and compel witnesses to testify allows them to reveal new details about events. At times, that process leads to witnesses disclosing potential criminality about themselves or others.When that occurs, Congress can make a criminal referral to the Justice Department — often in the form of a public letter — that can increase pressure on the department to open investigations. Sometimes members of Congress, amid partisan squabbling, overstate the evidence of criminality and make referrals to the Justice Department that are ignored because they appear political.Congressional investigations also create problems for witnesses because it is against the law to make false or misleading statements to Congress. The special counsel, Robert S. Mueller III, indicted Roger J. Stone Jr. in 2019 for lying to congressional investigators examining Russia’s interference in the 2016 election and for obstructing that inquiry. Mr. Stone was ultimately convicted and then pardoned by Mr. Trump.Mr. Stone appeared before the Jan. 6 committee on Friday to face questions about his role in the “Stop the Steal” movement. But rather than answer questions, he repeatedly invoked his Fifth Amendment right against self-incrimination because he said he feared that Democrats would again accuse him of lying under oath.During his meeting with the Jan. 6 committee last week, Roger J. Stone Jr., right, repeatedly invoked his Fifth Amendment right against self-incrimination.Stefani Reynolds for The New York TimesAt a hearing this month, Ms. Cheney suggested that the committee could subpoena Mr. Trump to answer questions and that criminal penalties would hang over his head if he lied.“Any communication Mr. Trump has with this committee will be under oath,” she said. “And if he persists in lying then, he will be accountable under the laws of this great nation and subject to criminal penalties for every false word he speaks.”Representative Adam B. Schiff, Democrat of California and a member of the committee, said it was “certainly possible” that the panel would make criminal referrals before the investigation concluded.Key Figures in the Jan. 6 InquiryCard 1 of 9The House investigation. More