Doty: What if the president broke the law?

A call for calm and creativity in light of the Jan. 6 investigation.

by Matthew Doty

On October 15, Joe Biden stated in an interview with CNN that anyone who defies a subpoena from the House Select Committee to investigate the Jan. 6 attack on the U.S. Capitol should be prosecuted. Despite Biden’s relative silence on the issue so far, his statement came as former Donald Trump aide Steve Bannon refused to comply with his Sept. 23 subpoena on dubious claims related to executive privilege. The Biden Administration’s brusque approach is likely to avoid accusations of over-politicizing a legal process, an accusation that has been levelled on numerous occasions against the Jan. 6 committee itself. The same hesitance has been evident at the Department of Justice (DOJ) throughout the process; comments have been reserved and pragmatic, offering little to no room for accusations of partisanship.

On Oct. 22, the House of Representatives voted 229-209 to hold Bannon in contempt of Congress for failing to comply with the subpoena, landing the issue on the desk of Merrick Garland and the DOJ. With this move and the other three simultaneously issued subpoenas of former Trump aides, the Committee appears to be circling the former president.

Trump, for his part, filed a lawsuit on Oct. 18 against Rep. Bennie Thompson and the Jan. 6 Committee (which he chairs) for “Sending an illegal, overbroad, and unfounded records request to the Archivist of the United States.” The lawsuit was more accurately in response to the fact that Biden refused to assert executive privilege over the documents requested, which Trump’s complaint calls a “political ploy.”

It is clear from Trump’s lawsuit and Bannon’s evasiveness that they each have incentives to block the committee’s investigation. Whether this is because the records contain damning evidence of misbehavior, or because he believes the committee will misinterpret and misconstrue them to get him in legal trouble, is unclear. The legal community has begun to discuss routes to prosecuting Trump himself for his actions on Jan. 6, some recommending multiple charges like conspiracy, obstruction of an official proceeding and extortion. Others suggest that his laid-back approach to stopping the insurrection in light of his official duty to “Take care that the laws be faithfully executed,” as outlined in Article II Section 3 of the Constitution qualifies as aiding and abetting. If this is a valid argument, then Trump is an accomplice, meaning that the former president is subject to the same crimes as the rioters, according to University of Chicago Law School professor Albert Alschuler.

That is a lot. I am no constitutional scholar, nor are most of the people who will read this column. But as the Jan. 6 Committee closes in on Trump and his inner circle to investigate what caused the insurrection, the general public needs to come to grips with the possible outcomes of the investigation. This investigation is unprecedented, and has the potential to go deep into the events of Jan. 6. We have to begin to ask ourselves, seriously and soberly, what we want from this.

The day was horrendous. We as a country need to figure out how to heal from it and how to best move forward. There are a few things to emphasize as we do so. For one, we need to figure out the truth of the matter. The American people need to know what happened for our own sake and for the sake of future Americans. Timothy Snyder, a Yale History professor, emphasized this point in an interview, saying “The January putsch is the day in infamy that we have to get right for historical purposes. If this becomes a myth of victimhood … then the country is in trouble”.

Inevitably, following the establishment of a narrative are the legal proceedings that are at the heart of the whole issue. Trump, should we find out that he committed crimes relating to Jan. 6, can be prosecuted. What should we think about this? How should we react if we find out that he did conspire to overthrow the election in this specific way? I am no fan of Trump’s, but prosecuting and potentially indicting a former president is nothing to be celebrated. At the very least, it would paint a grim picture of the state of our country; at most, it could be the impetus for more violence and unrest. Throwing former heads of state into prison (whether they deserve it or not) is reminiscent of countries heading into or out of autocracies. On the other hand, impunity for inciting the violence that caused multiple deaths and sought to uproot our democratic process surely cannot be the solution either. Alschuler offered that Trump should be prosecuted for aiding and abetting but then pardoned by Biden, noting that “The time to forgive Trump is not now, and the way to forgive him is not for the Justice Department to rule out prosecution from the outset.”

The laypeople (all of us) need to keep our eyes on the prize here. The rah rah of our own partisanship cannot take the spotlight. Given the plethora of potential approaches to prosecuting Trump in light of whatever evidence arises, we must try to remember what the point of investigating him is. Our first priority needs to be healing, not redemption. That said, if we are going to heal, we need to know the truth about that day, and consequences for actions must be handed out. As the investigation edges into murkier waters, as the Biden White House and DOJ potentially get more involved, and as legal action against top aides and the former president himself become more imminent, tensions are bound to flare up. If we want to maintain any sort of civility, the law must be creatively used in a way that both strongly disavows any violations on or leading up to that day and allows for some form of unity, all while promoting the establishment of law over politics.