Analysis | Most Americans think Trump should be prosecuted. It’s not that easy. – The Washington Post

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There’s no question that there would not have been a riot at the U.S. Capitol were it not for President Donald Trump.

The Jan. 6, 2021, riot depended on the presence on Capitol Hill of a lot of people who believed that Trump should remain in power, either because they thought the election was unfairly determined or they didn’t want Joe Biden to be inaugurated. For weeks before the riot, Trump had encouraged his supporters to come to Washington that day and, for months prior, had repeatedly made false claims against the sanctity of the election process.

On the morning of the riot, Trump spoke to the tens of thousands of supporters he’d summoned, reinforced their grievances about his imminent departure and its causes, and then told them how and why to head to the Capitol. After the violence began, Trump let it continue without interruption.

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The House select committee investigating the riot has spent the past few weeks publicly elevating the evidence that makes this pattern obvious and contextualizing the riot within Trump’s broader effort to retain power. It has been adding useful complexity to the picture, though at times risking making things more complicated than they actually are.

What Americans have taken away from the recent public discussion about the riot spurred by the committee’s work, it seems, is that Trump should face criminal charges for his role in spurring it.

There have been several polls conducted since the riot that have measured the extent to which Americans think Trump should face this very specific form of accountability. In the most recent, ABC News and Ipsos found that nearly 3 in 5 Americans think Trump should face criminal charges. That follows a poll conducted at the end of April by The Washington Post and ABC News that put the figure at just over half, which is about where things stood shortly after the riot, too.

You can see the recent shift below. While Democrats have consistently thought Trump should face criminal charges, only about 1 in 10 Republicans did in that April poll. In the new ABC-Ipsos poll, that jumped to nearly 1 in 5. Margins of error are important here; the shift may be more modest than the top-line numbers make it seem. But there’s little question that most Americans think Trump should face criminal charges.

This is important for two reasons.

The first is that shift. This is a change seen in two polls on a specific question, so we can’t directly state that it’s a function of the House committee’s work. But if broader public sentiment on the Capitol riot shifts as a result of the committee’s hearings, that’s notable. This is a “let’s wait and see” issue.

The other reason the polling is important, though, is because it establishes a baseline of expectations. Americans generally think Trump should be charged. But even with the apparent shift among Republicans, the subject is deeply polarized along party lines. And that, of course, colors the question of whether it would happen.

Writing for the New York Times, former assistant attorney general Jack Goldsmith walks through the questions facing Attorney General Merrick Garland when it comes to charging Trump. Garland might need to appoint a special counsel, Goldsmith argues, to isolate the decision from the political complexities of filing charges against Garland’s boss’s most likely 2024 opponent. He notes that, from the viewpoint of a prosecutor, the evidence at hand might not make a conviction likely — that, unlike the House committee’s hearings, a criminal trial with standards of evidence and cross-examination would necessarily give jurors a much less clear-cut picture of Trump’s guilt.

One important question here is whether Trump actually believed his assertions that he thought the election was stolen. There’s a surfeit of evidence to suggest that he didn’t, of course, and Trump certainly has an established record of saying things he obviously doesn’t believe to be true. But if the Justice Department wanted to charge Trump with obstructing an official proceeding — a crime the House committee has argued it thinks the former president committed — he might be able to convince jurors that he was simply trying to defend what he thought was the true will of voters.

That sentence alone can be spun off into a range of other directions. For example, the Justice Department might charge Trump with something other than the charges that the House committee appears to be targeting, such as fraud for his efforts to fundraise off his false election-fraud claims. Former U.S. attorney Harry Litman has argued that Trump’s culpability for the riot on Jan. 6 isn’t necessarily moderated by any argument that he believed the election was stolen: He still brought them to Washington, stoked their anger and pointed them at the Capitol.

Where Goldsmith’s essay closes, though, is probably the most important point. Not indicting Trump if Garland believed a prosecution was warranted would indicate that presidents are above the law, emboldening future presidents, including, possibly, Trump himself. But prosecuting him would be seen by a large segment of the public as itself an abuse of presidential power and would “further enflame our already-blazing partisan acrimony.”

What abstract discussions of the possibility of charging Trump often avoid is the practical reality of doing so. What’s at issue is not simply a white-collar sort of finagling by a president, not simply a secret Nixonian plot to quietly undercut political opponents. What is at issue is specifically a violent attack conducted by Trump supporters! Not only is Goldsmith’s concern about “enflaming” warranted, we’re talking here about a situation in which violence has already erupted in Trump’s defense. The threat of violence following potential criminal charges is not at all theoretical; if anything, it would be likely.

One imagines that, even as it gathers evidence and considers its path forward, federal law enforcement finds itself in a position similar to the one the Republican Party’s establishment faced for the past seven years: hoping things just sort of fade out in an acceptable way. Do nothing and hope it works out.

It has so far not worked out for the Republican establishment.

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