It's been a year and 11 days since Trump's attempted coup ended in a failed insurrection at the U.S. Capitol. None of the plotters and planners have been charged. And Trump, who was so fearful of being arrested for the first few months afterwards, is now back on the warpath, convinced that he's bulletproof. According to a new poll by NORC for the Associated Press 70% of those polled assigned some guilt to Trump for the sacking of the Capitol-- 46% a great deal, 11% quite a bit of blame and 13% a moderate amount of blame. Only 39% of Republicans assign any guilt to Trump, while 92% of Democrats and 77% of independents do. Nearly two-thirds of Americans say the riot was extremely or very violent, and about 7 in 10 think Congress should continue investigating the events of Jan. 6.
Without any specific polling data, I'd guess that most Democrats, virtually no Republicans and a probably less than half the independents want to see Trump prosecuted for his role in the coup and insurrection. This morning, Alexander Bolton reported that "Senate Democrats believe there is a good chance the Department of Justice will prosecute Trump for trying to overturn the results of the 2020 election and inciting the Jan. 6 attack on the Capitol, which would have major political reverberations ahead of the 2024 presidential election. Democratic lawmakers say they don’t have any inside information on what might happen and describe Attorney General Merrick Garland as someone who would make sure to run any investigation strictly 'by the book.'"
Given the weight of public evidence, Democratic lawmakers think Trump committed federal crimes.
But Senate Democrats also warn that Garland needs to proceed cautiously. Any prosecution that fails to convict Trump risks becoming a disaster and could vindicate Trump, just as the inconclusive report by Robert Mueller's team was seized upon as by Trump and his allies to declare his exoneration on a separate series of allegations.
Sen. Richard Blumenthal (D-CT) said “clearly what [Trump] did” in the days leading up and the day of the Jan. 6 attack on Congress “falls in the ambit of what’s being investigated and perhaps is criminal.”
Sen. Tim Kaine (D-VA) said it’s up to the prosecutors at the Justice Department whether to charge Trump, though he believes that the former president’s actions on and before Jan. 6 likely violate federal law.
“They have all of the evidence at their disposal,” he said.
Kaine believes federal prosecutors are looking seriously at charges against Trump although he doesn’t have any inside information about what they may be working on.
“My intuition is that they are” looking carefully at whether Trump broke the law, he said. “My sense is they’re looking [at] everything in a diligent way and they haven’t made a decision.”
“I believe there are federal statutes that are very much implicated” by Trump’s efforts to overturn Biden's victory in the 2020 election, Kaine added.
Sen. Sherrod Brown (D-OH) said “I think anybody who it’s proven had a role in the planning of [the Jan. 6 attack] should be prosecuted, not just the people who broke in and smashed the window in my office and others.”
“I think anybody that’s shown to have had a role in its planning absolutely should be prosecuted,” he added. “I mean it was treason, it was trying to overturn an election through violent means.”
Asked whether Trump broke the law, Brown said “I’m not going to say he’s guilty before I see evidence,” but he also said there’s “a lot of evidence that he was complicit.”
...A Democratic senator who requested anonymity to comment on what Democratic lawmakers expect from Garland said many Democrats believe Trump broke the law by trying to halt the certification of Biden’s victory.
But the lawmaker warned that it could be tough to win a conviction in court and that Trump will try to discredit any prosecution as a politically motivated witch hunt.
“It’s going to be a hard decision for them to make,” the senator said, referring to Garland and his team.
A second Democratic senator who requested anonymity to comment on the possibility of a federal prosecution of Trump warned that it would take only one pro-Trump juror to derail a conviction and that failure to win any case in court would have disastrous consequences.
“If you pull the trigger on this one, you have to make sure that you don’t miss because this is one if you miss it essentially validates the conduct,” the senator warned.
Legal experts are split over how strong a case Garland would have against Trump.
Randall Eliason, a law professor at George Washington University and a former federal prosecutor, last year said that it would be appropriate for prosecutors to investigate Trump’s role in the Jan. 6 attack and his efforts to halt Biden’s certification as president.
But Andrew Koppelman, a constitutional law expert at Northwestern University, told Bloomberg that Trump’s right to free speech would make any case against Trump difficult to prosecute.
“You can’t allow the government to lock up protest leaders whenever the protests produce violence,” he warned. “The Trump speech was full of lies, but that’s not a crime. He told them to ‘fight like hell,’ but that’s familiar political language that does not ordinarily produce violence.”
For his whole life, Trump has emulated Mafia dons who give orders without implicating themselves personally in crimes. It's been his style and so far his life of crime has not resulted in a single day of prison. The chances of that changing now-- under this tepid administration and in today's fraught political environment-- are so minuscule that they are, at least in my opinion, less than 1%, less than a half of 1%. As for the congressional conspirators, I doubt any will even get the most minor slap of the wrist, although I'm watching to see if anything comes of the proceedings against Madison Cawthorn in North Carolina.