After completing a series of eight public hearings conducted by the Jan. 6 House Select Committee investigating former President Trump and his inner circle’s role in the Capitol Hill insurrection, there are two major questions that confront the nation. Will Donald Trump and his co-conspirators in their failed coup attempt be held accountable for their crimes against the Constitution and what safeguards must be adopted to prevent attempts to overturn future presidential elections?
Many legal experts are alarmed that a July 26 Washington Post news story reports that the U.S. Department of Justice is investigating Trump, but appears to have had little or no knowledge about the recent House hearings’ testimony by former White House staffers that incriminated Trump. In the view of many legal and constitutional scholars, there’s a growing body of evidence that should result in one or more charges being brought against Trump that include: seditious conspiracy, obstructing an official proceeding of Congress, conspiracy to defraud the U.S. government and manslaughter.
Between The Lines’ Scott Harris spoke with Ron Fein, legal director with Free Speech For People, who talks about his concerns regarding what appears to be the Justice Department’s lagging investigation into Donald Trump’s multi-pronged conspiracy to overturn the 2020 election and electoral reforms urgently needed to prevent attempts to subvert the results of future presidential elections.
RON FEIN: I think the Garland Department of Justice has been a big disappointment. Now, it is true that Jan. 6 itself is complex and requires a complex investigation. But what we are hearing is that the Department of Justice hadn’t even interviewed some of the witnesses that are speaking at the Jan. 6 Committee hearings and was quite surprised to hear some of their testimony for the first time on national television. That tells me that they’re not looking in the right directions.
But even apart from Jan. 6th, there were previous crimes identified by the Department of Justice with Trump involved that the Department of Justice is essentially letting statutes of limitations expire on.
And I’ll give two examples — one is in the 2016 election. You may remember that Michael Cohen, Trump’s former personal lawyer ended up pleading guilty to charges where Individual One, who was the president of the United States, had ordered him to pay off Trump’s mistresses.
And you know, Trump was identified in the charging documents as the president of the United States and Cohen confirmed that he was instructed to do so by Trump and the Department of Justice has a policy of not charging sitting presidents. Fair enough. But Trump has been out of office now for quite some time.
And the second thing is the Mueller report. Mueller laid out all of the elements of charges related to obstruction of justice, criminal obstruction of justice related to Trump’s efforts to shut down the Russia investigation. Again, Mueller, held back from actually recommending any charges against Trump because of that policy against charging a sitting president.
But Trump has been out of office and the Department of Justice is not following up any of those things that its own prosecutors have already identified as crimes committed by Trump. So overall, the U.S. Department of Justice has not been at the forefront of Trump accountability. Instead, it’s falling to the district attorney of Fulton county, Georgia, and to nonprofit groups like Free Speech for People and others who are working around the gaps that the Department of Justice should have been filling.
SCOTT HARRIS: You know, you hear a lot of pundits talk about the danger of charging the former president, Donald Trump, with any number of charges. The concern expressed is that it will provoke violence from his supporters around the country.
But of course, there are other people raising the alarm that if Donald Trump is above the law and is not held accountable for one of the most serious crimes ever committed against America’s democracy, that, in the words of some people, what we saw on Jan. 6th will just be a dress rehearsal for the next coup attempt.
RON FEIN: I agree with that latter position, which is to say that, although it certainly should give pause that charging a former president with crimes would be a unprecedented step. But not charging him, allowing this to go completely unpunished, would be the far greater danger.
And furthermore, if a decision is to be made based on complex balancing and evaluation of what’s good for healing the nation, that decision shouldn’t be made by Merrick Garland. He’s not elected by anyone. That decision — if that is a decision that’s gonna be made — belongs to the president of the United States.
So Garland’s job is — that is, if the facts support criminal charges and they sure seem to — to then recommend those charges and to pursue them.
And then if Biden wants to issue a pardon as Gerald Ford did of Richard Nixon, that’s up to the president of the United States, not up to the attorney general to decide what he thinks is in the nation’s best interest.
SCOTT HARRIS: Ron, I did want to ask you about the reform of our election laws. It’s very obvious that after Jan. 6, there’s a lot of repairs that have to be made to our election system that were quite vulnerable to Trump and his inner circle who attempted to overturn the popular will expressed in the 2020 election.
One of the things that is being worked on right now by a group of bipartisan senators is to reform the Electoral Count Act. And I wondered if you tell our listeners a bit about that, its importance. And I know there are other pieces of the reforms that need to be put in motion.
RON FEIN: Most of your listeners know about the general idea of the Electoral College, where it’s not a national popular vote, but that it’s done by states. And then there’s this uneven count, where states allocate typically all of their electors to whoever got a slight majority in that state.
And you know, most of the time, the popular vote ends up tracking the Electoral College, although several times in recent elections, it has not. But, the details of how those electoral votes get counted, has been exposed as an incredibly creaky process.
The Constitution is very vague about that process. And Congress wrote a law in 1887, 11 years after the disputed election of 1876 called the Electoral Count Act. And it is honestly one of the worst written, most confusing statutes in the entire federal code.
It’s ambiguous. It’s hard to follow grammatically and it is open to abuse. Although this is not the only problem that threatens our democracy with opportunities for election subversion, it’s certainly an important one.
And recently, a bipartisan group of senators came forward with a proposal to reform the Electoral Count Act. You can quibble with it on various points. And, undoubtedly it could benefit from some improvement and there may be other proposals coming out of the House.
But the Electoral Count Act as it currently stands is a disaster and absolutely needs to be fixed.
Fein is also co-author of the book, “The Constitution Demands It: The Case for the Impeachment of Donald Trump.”
For more information, visit Free Speech for People at freespeechforpeople.
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