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Could the Jan. 6 committee's findings lead to criminal charges for Trump?

AILSA CHANG, HOST:

On January 6, as rioters flooded into the U.S. Capitol, former Vice President Mike Pence's security detail feared for their lives.

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UNIDENTIFIED PERSON: There were calls to say goodbye to family members, so on and so forth. It was getting - for whatever the reason was on the ground, the VP detail thought this was about to get very ugly.

CHANG: That's the testimony of an unnamed national security official that was played during the January 6 hearing last night. The danger that Secret Service agents felt and expressed to their superiors was just one of many new details presented about the attack on the Capitol. The select committee was focused on laying out how then-President Trump spent the 187 minutes between the end of his rally on the Ellipse at 1:10 p.m. and the release of his video urging people to leave the Capitol at 4:17 p.m. The committee presented a picture of a president who did nothing to stop the violence happening just about two miles away, including with testimony from former Deputy White House Press Secretary Sarah Matthews.

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SARAH MATTHEWS: His refusal to act and call off the mob that day and his refusal to condemn the violence was indefensible.

CHANG: In fact, Congresswoman Elaine Luria said the former president sat in his private dining room and watched the riot unfold on Fox News.

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ELAINE LURIA: Other witnesses confirm that President Trump was in the dining room with the TV on for more than 2 1/2 hours. There was no official record of what President Trump did while in the dining room.

CHANG: Trump's unwillingness to act was the last straw for Matthews.

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MATTHEWS: If the president had wanted to make a statement and address the American people, he could have been on camera almost instantly.

CHANG: She recounted during the hearing that she resigned that very night. Multiple former White House officials testified that despite the resistance from his staff, despite the calls for him to take steps to stop the violence, Trump was still refusing to admit defeat the following day, as seen here in an outtake from a speech he released on January 7.

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DONALD TRUMP: I don't want to say the election's over. I just want to say Congress has certified the results without saying the election's over, OK?

CHANG: So what do the findings of the January 6 committee mean going forward? Could former President Trump face criminal charges? Well, those are just two of the questions we're going to talk through with Andrew Weissmann. He has firsthand experience investigating cases that concern the president. He was a senior prosecutor on special counsel Robert Mueller's investigation into Russian interference in the 2016 election.

Andrew Weissmann joins us now. Welcome back to ALL THINGS CONSIDERED.

ANDREW WEISSMANN: Thank you.

CHANG: Based on all the evidence that you have seen presented by the select committee in these several first hearings, do you think that there is enough evidence to charge Donald Trump with a crime, and if so, what crime?

WEISSMANN: So I'm going to give you a very - an answer that's not terribly satisfying, because...

CHANG: You are a lawyer, after all (laughter).

WEISSMANN: Exactly. So the way I look at this is whether there is enough evidence to have a thorough investigation into certain crimes. Is there sufficient evidence to be able to charge; meaning could one satisfy the heavy burden that the government would have in a criminal case to prove the matter beyond a reasonable doubt? But I do think, based on the evidence that's been laid out so far by the committee, that there is ample evidence to have that thorough investigation.

And just to give you at least something to answer your question, it would - there clearly would be the crime of obstructing Congress as something to be investigated. I do think that the harder charge would be seditious conspiracy because that requires proving that a person was going to obstruct Congress with force, with the use of physical violence and that there was that agreement to use physical violence. And I think that's something that could be investigated, but I think that would be a harder charge at this point.

CHANG: Well, we know that the Justice Department is investigating what happened on January 6 before, during and after. But when it comes to whether there is enough evidence to charge, I am curious. Like, what additional evidence do you think the Justice Department needs at this point to bring a criminal charge, either for obstruction of Congress or for seditious conspiracy, to satisfy a standard like beyond a reasonable doubt? Can you give us examples of evidence you would have liked to have seen?

WEISSMANN: So with respect to seditious conspiracy, what you would want to see is direct evidence that the president knew that violence would be used with respect to Congress, with respect to attacking the building. Now, the Department of Justice may get there and may be able to show that, but that's the kind of thing that if I were a juror, and certainly if I were still in the Department of Justice, I would want to know, is there that direct evidence? Are there people who can talk about the president's scheme, what was said to him, what he said in response? That would be the ideal.

CHANG: Well, let's say the Justice Department does determine that there is enough evidence to prosecute Trump, and I totally understand we are operating in the land of hypotheticals right now. Let's say that the Justice Department does determine that. Then, obviously, the attorney general, Merrick Garland, has a huge decision on his hands - right? - 'cause no former president has ever faced criminal charges. Can you just talk about, like, what are the risks if the attorney general were to move forward and prosecute a former president?

WEISSMANN: I think the risks are further division of America, of creating this distraction, in many ways, a forum for the former president to vent his grievances and for the wounds that we have - that have been inflicted and inflamed by the former president would continue. But I think that the greater risk would be, in my view, if you could make the criminal case, would be in not going forward. We would not be the only so-called first-world country to bring charges against former leaders. That's the case in Israel currently. And here, if the department were able to prove that the former president engaged in insurrection, undermining our democracy, to me, the greater risk is in not going forward.

CHANG: So what you're saying is that it is extremely vital to not show that the president or a former president is above the law.

WEISSMANN: Absolutely, particularly when the crime that we would be considering is one of undermining democracy and allowing a president who was voted out of office to thwart the will of the people.

CHANG: Well, former President Trump has repeatedly cast himself as a target of the so-called deep state, as he likes to say. And, I mean, yeah, in a deeply divided country, do you think prosecuting Trump would only reinforce that accusation in some people's eyes that the Justice Department is not independent, it is not an entity that can remain above the fray of politics? What do you think?

WEISSMANN: I do think that that is a risk. You have to remember that the Department of Justice could decide to go forward, but at the end of the day, the department doesn't get to decide who is guilty and goes to jail. The people do. It's 12 citizens, and that verdict would have to be unanimous. And so that is a real check on the power of the Department of Justice.

CHANG: That is Andrew Weissmann, a former Justice Department prosecutor and a professor of practice at NYU School of Law. Thank you so much for joining us today.

WEISSMANN: Thank you for inviting me. Transcript provided by NPR, Copyright NPR.

Ailsa Chang is an award-winning journalist who hosts All Things Considered along with Ari Shapiro, Audie Cornish, and Mary Louise Kelly. She landed in public radio after practicing law for a few years.
Karen Zamora
Courtney Dorning has been a Senior Editor for NPR's All Things Considered since November 2018. In that role, she's the lead editor for the daily show. Dorning is responsible for newsmaker interviews, lead news segments and the small, quirky features that are a hallmark of the network's flagship afternoon magazine program.
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