A guest opinion by Everett Wohlers, a former deputy secretary of state in Idaho.
In a display of spinelessness, 43 Republican Senators on Saturday February 13 voted to give Donald Trump a pass for his brazen attack on the Constitutional order in the form of his attacks on the validity of the election and his incitement of the insurrection against the Capitol and the counting of the electoral vote by Congress.
Most of those Senators, including both of Idaho’s, explained their votes to acquit by invoking the decisively debunked argument that the Constitution does not permit impeachment and conviction of a President after he leaves office. None of the Republican Senators who voted to acquit argued that the ex-President was not guilty of the offense with which he was charged. Minority Leader Mitch McConnell even got up and agreed in some detail with the House managers that Trump was guilty as charged.
So we are left with an ex-President who remains eligible to hold future office, including the Presidency, despite having violated his oath of office in the most egregious way possible – by attacking the most fundamental feature of a functioning democracy, the peaceful transfer of power to the choice of the people. What must be done about it, and by whom?
The nature of the offenses committed by the ex-President and his many co-conspirators is criminal under federal law. To not pursue justice under those laws would in effect say to the world that powerful people are above the law. So action under the relevant federal laws must be pursued, but by whom? The US Attorney for the District of Columbia could take on such a case, since that is the venue where the core of the criminality occurred. But there were many related criminal acts that occurred in remote swing states such as Arizona, Pennsylvania and Georgia, so the US Attorney for DC would face logistical and jurisdictional problems.
Alternatively, prosecutions could be divided among the US Attorneys for the venues of different criminal acts, but that would create a disjointed effort, with possible conflicts. Another possibility is that the new Attorney General, presumably Merrick Garland, could bring the action, but that could be seen as a partisan effort by many, putting the legitimacy of the outcome in doubt in many eyes.
There is a better option that does not suffer from those problems. After Merrick Garland is confirmed as Attorney General, he should appoint a Special Counsel to investigate and appropriately charge those who committed federal criminal offenses in connection with the ex-President’s attempts to overturn the results of the election. The Special Counsel’s remit should be broad so that it can charge any crime by any person that was committed in connection with the effort to overturn the election results, to include the insurrection against the Capitol and the electoral vote count.
While the scope of the Special Counsel’s investigation and prosecutorial actions would not be limited to them, there are three relevant laws under which charges could be brought that come to mind immediately.
First, 18 U.S. Code Section 595 makes it a crime for any government official to use “his official authority for the purpose of interfering with, or affecting, the . . . election of any candidate for the office of President. . . .” The efforts of Trump and his surrogates to intimidate election officials in the swing states such as Michigan, Arizona, Pennsylvania and particularly Georgia to “find” votes appear to clearly fall within the purview of this law.
Second, 18 U.S. Code Section 2383 makes it a crime to incite “insurrection against the authority of the United States or the laws thereof, or [to give] aid or comfort thereto . . . .” The Senate impeachment trial established that Trump and a number of his surrogates did exactly that in inciting the attack on the Capitol and Congress’ count of electoral votes.
Third, 18 U.S. Code Section 2384 makes it a crime for “two or more persons . . . [to] conspire . . . by force to prevent, hinder, or delay the execution of any law of the United States . . . .” The clear evidence from the impeachment trial shows that Trump conspired with a number of others, including Giuliani, Flynn, Kremer, Jones, et.al. to cause the mob to disrupt the count of electoral votes that is required by the Constitution, and that the mob’ actions did in fact “hinder or delay” completion of the count.
If no person is above the law, these and any other relevant crimes must be charged and prosecuted to the full extent of the law, regardless of political considerations. One of the new Attorney General’s first actions upon confirmation should be the appointment of a Special Counsel with a broad remit to investigate and prosecute all of those who have committed federal crimes in connection with the ex-President’s attempts to overturn the election result, to include the ex-President and his co-conspirators.