Trump accused of ‘criminal’ attempt to overturn election. How bad could it get for the ex-president?

January 6 committee’s court filing lays out path ahead for riot investigation

Donald Trump ‘said the criminal part out loud’ with election plan, says Democrat

The January 6 committee has made its boldest move yet.

In a court filing, the panel’s lawmakers have alleged that there is enough evidence to suggest that Donald Trump and his attorney, John Eastman, were engaged in a criminal conspiracy to defraud the United States with their attempts to overturn the 2020 election.

Such an accusation is still a long way away from actually resulting in a criminal charge. But the late-Wednesday development is no doubt the most significant development of the January 6 committee’s work to hold those responsible for the attack on Congress accountable.

What exactly happened? Has Trump been charged with a crime?

Not yet. On Wednesday, the January 6 committee filed a brief asking a judge to waive claims of attorney-client privilege that Mr Eastman, the ex-president’s attorney, is arguing in an attempt to shield his communications with Mr Trump from the committee’s grasping subpoenas. The panel argued in the filing that Mr Eastman did not simply serve the role of Mr Trump’s attorney, and was in fact a well-documented member of the effort to overturn the election as a political adviser to the president.

That claim could easily hold water in court, given Mr Eastman’s previously reported role in the efforts to convince then-Vice President Mike Pence to interfere with the Electoral College count on January 6. The panel also noted Mr Eastman’s public remarks at the rally outside the White House on the day of the riot, a role that hardly could be defined as that of a typical attorney.

But in that brief was a stunning charge that illuminates where the congressional investigation is likely headed: The direct assertion that “[t]he Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States”.

And that’s not all. That was the second of three potential charges the committee’s brief indicated Mr Trump could face, the other two being obstruction of an official proceeding (through his attempts to disrupt the count of the Electoral College vote), and common law fraud (referring to his false statements about the 2020 election).

That’s the strongest indication thus far that the committee, which cannot directly issue criminal charges itself, plans to ask the Justice Department to review the evidence it has obtained (or will obtain, through Mr Eastman’s communiques) and consider issuing charges targeting the ex-president himself. So far, the committee has only made recommendations for charges in the cases of allies of Mr Trump who defied congressional subpoenas.

Pro-Trump protesters march down Pennsylvania Avenue to the US Capitol (seen behind) in Washington, DC, 6 January 2021

How bad is that for Trump?

Simply put, it’s not good. Criminal charges in any of those three areas would cast a massive shadow over the former president’s efforts to remain the de facto head of the Republican Party. A criminal prosecution is not certain, but the Justice Department has shown no hesitation to act upon the committee’s previous recommendations. As a former president, Mr Trump has no immunity from prosecution, though any case against a former president would be extremely politically sensitive.

While polls indicate that Mr Trump is still the wide favourite of GOP voters for the 2024 nomination, criminal prosecution would likely be the blood in the water that would spur Mr Trump’s GOP rivals into more public attacks and efforts to topple the Mar-a-Lago wing of the party.

The ex-president himself likely knows this, as it was his exploitation of the FBI investigation into Hillary Clinton’s use of a private email server to conduct State Department business that propelled him to victory in 2016, alongside missteps of the Clinton campaign and interference by Russian-backed operatives who worked throughout 2016 to damage Ms Clinton politically.

Where do we go from here?

The committee’s investigation will continue in the weeks and months ahead, and the battle over Mr Eastman’s communications with Mr Trump are likely to be a major focus. But it’s completely possible that the panel would go ahead and recommend charges against Mr Trump even if it fails to overcome Mr Eastman’s claim of attorney-client privilege.

We’re still a long way from seeing Donald Trump inside a courtroom answering for the January 6 attack on Congress. But Wednesday’s filing by the congressional committee investigating that attack is the first real sign that it’s a possibility.

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