This will likely not be a popular position. The precedent Trump set is dangerous and disturbing, resulting in a violent attack on the U.S. Capitol and persistent bad-faith attempts by his supporters to overturn the result. It’s unsurprising that Congress is investigating this matter. But the evidence of Trump’s behavior available to us now—and I emphasize now—does not merit criminal prosecution. That’s not because Trump’s actions were not reprehensible—they were—but rather because what we know he did does not fit neatly within the four corners of federal criminal statutes.
The most prominent proponents of a criminal investigation of Trump are three lawyers whom I know and greatly respect. Recently, Laurence Tribe, Barbara McQuade and Joyce White Vance wrote a “roadmap” for a potential criminal investigation of Trump. They offer eight possible charges, ranging from conspiracy to RICO. I admire their creativity, but because Trump’s conduct was so unusual, any one of the charges they lay out would represent a “first of its kind” case. I’ve prosecuted one of those before, and they come with their own special set of challenges and risks because there is no existing legal precedent to guide prosecutors.
They suggest that, for example, Trump may have violated the Hatch Act by pressuring his then-acting attorney general to “just say the election was corrupt.” While that would have been false and an unprecedented abuse of power, it is not the sort of thing that is “political activity” for Hatch Act purposes.
The Hatch Act was intended to keep career officials from being pressured to engage in partisan political activity. For example, a federal employee sending out fundraising emails from work or canvassing for votes. Putting out a statement about corrupt activity uncovered in a DOJ investigation would be official governmental activity. In this case, of course, it would have been dishonestly done in order to benefit the president. But that kind of dishonesty does not itself turn an official act into “political activity,” and the mere fact that the then-president had a political motive does not do so either.
Similarly, their suggestion that the office of the president was a criminal enterprise for purposes of a Racketeer Influenced and Corrupt Organizations Act (“RICO”) charge is novel. RICO is typically used to prosecute mob bosses and street gangs, and it would be a challenge to convince 12 jurors beyond a reasonable doubt that the president pressuring a Georgia election official transformed the Oval Office into the center of an ongoing criminal enterprise.
As Tribe, McQuade and Vance rightfully note, Trump’s role in inciting his supporters to attack the U.S. Capitol would itself be difficult to prosecute criminally. Certainly, Trump’s tweets and statements whipped up his supporters, who ultimately engaged in a brutal attack that resulted in multiple deaths and nearly obstructed the peaceful transfer of…
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