About the authors: Donald Ayer served as United States attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under George H. W. Bush. Stuart M. Gerson served as assistant attorney general for the Civil Division of the Department of Justice from 1989 to 1993 and as acting attorney General in 1993. He is a member of the firm at Epstein Becker Green. Dennis Aftergut is a former federal prosecutor and former Chief Assistant City Attorney in San Francisco, currently Of Counsel to Lawyers Defending American Democracy.
After seven hearings held by the January 6 committee thus far this summer, doubts as to who is responsible have been resolved. The evidence is now overwhelming that Donald Trump was the driving force behind a massive criminal conspiracy to interfere with the official January 6 congressional proceeding and to defraud the United States of a fair election outcome.
The evidence is clearer and more robust than we as former federal prosecutors—two of us as Department of Justice officials in Republican administrations—thought possible before the hearings began. Trump was not just a willing beneficiary of a complex plot in which others played most of the primary roles. While in office, he himself was the principal actor in nearly all of its phases, personally executing key parts of most of its elements and aware of or involved in its worst features, including the use of violence on Capitol Hill. Most remarkably, he did so over vehement objections raised at every turn, even by his sycophantic and loyal handpicked team. This was Trump’s project all along.
Everyone knew before the hearings began that we were dealing with perhaps the gravest imaginable offense against the nation short of secession—a serious nationwide effort pursued at multiple levels to overturn the unambiguous outcome of a national election. We all knew as well that efforts were and are unfolding nationwide to change laws and undermine electoral processes with the specific objective of succeeding at the same project in 2024 and after. But each hearing has sharpened our understanding that Donald Trump himself is the one who made it happen.
As former prosecutors, we recognize the legitimacy of concerns that electoral winners prosecuting their defeated opponents may look like something out of a banana republic rather than the United States of America; that doing so might be viewed as opening the door to prosecutorial retaliation by future presidential winners; and that, in the case of this former president, it might lead to civil unrest.
But given the record now before us, all of these considerations must give way to the urgency of achieving a public reckoning for Donald Trump. The damage to America’s future that would be inflicted by giving him a pass far outweighs the risks of prosecuting him.
The committee’s evidence to date establishes multiple significant points for prosecutors. (A comprehensive summary of the evidence—offense by offense—is available at Just Security’s “Criminal Evidence Tracker.”)
First, contrary to speculation that Trump may have genuinely believed he won the election, and thus in his own mind was seeking rough justice in trying to change the outcome, the committee has demonstrated repeatedly that he knew beyond all doubt that he had lost fair and square. Trump’s former attorney general Bill Barr told the president that claims of widespread voter fraud were “bullshit.” Numerous reinforcements of that message were delivered by many others, including Barr’s successor, former Acting Attorney General Jeffrey Rosen; former Deputy Attorney General Richard Donoghue; and multiple Trump-campaign officials.
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Second, Trump’s involvement in carrying out the scheme was systematic, expansive, and extraordinarily personal. As if to illustrate how personal his intervention was (and is), Republican Liz Cheney, the committee’s vice chair and the representative from Wyoming, dropped a bombshell at the end of Tuesday’s hearing: Sometime since the previous hearing on June 28, Trump himself had contacted a witness, something that his lawyers certainly could have told him could easily lead to charges of witness tampering. Cheney announced that the committee has notified the Justice Department of Trump’s latest misconduct.
The committee’s previous hearings showed that in the months after the 2020 election, Trump himself—not some aide or lawyer or other ally—tried to interfere with the state vote-counting processes. Among the most memorable incidents was his 67-minute January 2 call to Georgia Secretary of State Brad Raffensberger asking him to “find” 11,780 nonexistent votes, creating a Trump win. Trump himself also called to try to influence the state’s chief elections investigator, Frances Watson, and spoke with Georgia Governor Brian Kemp to urge him to call a special legislative session to appoint alternative electors.
There is also evidence that Trump spoke with Republican Pennsylvania House Speaker Bryan Cutler after he had declined repeated calls from Rudy Giuliani and Jenna Ellis, two Trump-campaign attorneys, to bring the legislature into session to decertify the state’s election results. And Republican National Committee chair Ronna McDaniel and Arizona House Speaker Rusty Bowers, also a Republican, both testified that Trump phoned them in December to ask for their help in implementing the infamous bogus-elector scheme. (John Eastman, another Trump lawyer, and Giuliani were also involved with those calls.)
Trump tried persistently to obtain the help of the Department of Justice in creating a false public impression that the election had been fraudulent. After he failed in mid-December to persuade Bill Barr to assert election fraud, Trump called Rosen, Barr’s successor, nearly every day in the same pursuit. And when this effort too failed, at a White House meeting on January 3, he undertook to replace Rosen with Jeffrey Clark, a second-tier DOJ official whom Trump had spoken with personally and found more compliant. This effort failed only when Donoghue and Rosen told Trump that the entire department’s leadership would resign if Clark were installed.
Crucial to the whole plot, of course, was the unlawful scheme to pressure Vice President Mike Pence into rejecting or delaying the electoral count. Multiple witnesses testified about being present to hear Trump’s “heated” call with Pence on the morning of January 6. One witness said that Trump called Pence a “wimp.” Ivanka Trump testified that she had never previously heard her father treat Pence that way, and she told another witness that Trump had used the “P-word” to denigrate the vice president’s manhood.
Ample evidence has also shown Trump well knew that Pence could not properly do as Trump urged. Mike Pence’s counsel, Greg Jacob, testified that Trump was present at a January 4 White House meeting where John Eastman admitted the unlawfulness of his and Trump’s plan to have the vice president not certify the electoral count two days later.
A third significant point for prosecutors is that the hearings have put into sharp focus Trump’s personal involvement and advance knowledge of the dangerous circumstances surrounding the January 6 insurrection. Cassidy Hutchinson, who was the principal aide to Chief of Staff Mark Meadows, testified that she overheard Trump complain just before his January 6 speech on the Ellipse that supporters were not being allowed into the security area for his speech while armed, and thus were staying outside. She recalled Trump asking to have the magnetometers removed, saying that he did not care if attendees were armed, because “they’re not here to hurt me.”
Hutchinson also testified that Trump expected to go to the Capitol after his speech and was angry when the Secret Service denied his request to do so, testimony that others have corroborated. He wanted to be part of and lead an armed mob aimed, at minimum, at intimidating Congress and Mike Pence. That is significant evidence demonstrating criminal intent in connection with the crime of inciting an insurrection. Told that the mob had threatened to hang the vice president, Trump apparently responded that he “deserves” it.
Finally, the committee has persuasively established that Trump continued to facilitate the insurrection, even after he returned to the White House once the Secret Service refused to take him to Capitol Hill. Chair of the Joint Chiefs of Staff Mark Milley testified that during the violence, Pence called him to request the National Guard to restore order; Trump made no such call. In fact, Trump did nothing for more than three hours to quell the insurrectionists.
To the contrary, Deputy White House Press Secretary Sarah Matthews testified that by tweeting that Pence “didn’t have the courage to do what should have been done” to overturn the election, Trump was “pouring gasoline on the fire.”
All of that was enough to show Trump’s personal leadership of the Big Lie effort and his complicity in the violence of January 6. But in addition, at Tuesday’s hearing, the committee focused attention on Trump’s December 19 tweet inviting his supporters to a “big protest in D.C. on January 6th.” He added, “Be there, will be wild!” The committee showed evidence of communications among the militant Oath Keepers, Proud Boys, and Three Percenters hours after the tweet demonstrating that it was the signal that prompted previously unaligned groups to cooperate in developing military-style operational tactics for the violent Capitol invasion.
In assessing the importance and priority to be given to a DOJ decision to prosecute, the Justice Department Manual lists three factors with special relevance here: “the nature and seriousness of the offense,” “the deterrent effect of the prosecution,” and “the person’s culpability in connection with the offense.”
On the first point, it is hard to imagine an offense that would more urgently call for criminal accountability by federal prosecution than a concerted and nearly successful ffort to overthrow the result of a presidential election. It is an offense against the entire nation, by which Trump sought to reverse a 235-year-old constitutional tradition of presidential power transferring lawfully and peacefully.
The fact that a related state grand-jury investigation is proceeding in Fulton County, Georgia, relating to the part of the plot aimed at the Georgia vote count and certification process does not alter or lessen the urgency of this federal interest. Separate state and federal prosecutions can and should proceed when federal interests are as strong or stronger than the local interest.
Nor can there be any doubt about the crucial need to deter future attempts to overthrow the government. For the past 18 months, and presently, Trump himself and his supporters have been engaged in concerted efforts across the country to prepare for a similar, but better-planned, effort to overcome the minority status of Trump’s support and put him back in the White House. Moreover, if the efforts of the former president and his supporters garner a pass from the federal authorities, even in the face of such overwhelming evidence, Trump will not be the only one ready to play this game for another round.
As many have pointed out, deterrence requires that the quest for accountability succeed in achieving a conviction before a jury—here most likely made up of citizens of the District of Columbia. And the Department’s regulations make the odds of the prosecution’s success an important consideration in determining whether to go forward. In the case of a person who has made a career out of escaping the consequences of his misconduct, this is no small issue for the attorney general to take into account.
But as former prosecutors, we have faith that the evidence of personal culpability is so overwhelming that the case can be made to the satisfaction of such a jury. One of us—Gerson—has tried many difficult cases before D.C. juries with success. As a defendant, Donald Trump would open the door to all sorts of things that wouldn’t come into a normal trial, and the prosecutor could have a field day in argument about how this would-be tyrant tried to overthrow the government that has kept our nation free for two and a quarter centuries. Bottom line: Given what is at stake, even with the risk of a hung jury—leaving room for a second trial—there is no realistic alternative but to go forward.
Any argument that Donald Trump lacked provable criminal intent is contradicted by the facts elicited by the January 6 committee. And the tradition of not prosecuting a former president must yield to the manifest need to protect our constitutional form of government and to ensure that the violent effort to overthrow it is never repeated.
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