Barbara McQuade, the former United States Attorney for the Eastern District of Michigan just raised the bar for ingenious ways for speaking truth to power . . . in this case, the power of the Attorney General of the United States.
On February 22 in Just Security, McQuade published an exhaustively detailed model prosecution memo for indicting former President Donald Trump for his unrelenting criminal actions in pressuring Vice President Mike Pence to take lawless steps to delay the electoral count on Jan. 6.
Those steps would have sent the Electoral Vote certifications back to the states without legal basis and given Trump time to sow chaos to remain in power.
McQuade’s prosecution memo marshals the evidence masterfully to demonstrate how the former President should be charged with criminally conspiring to defraud the United States and with the separate crime of obstructing an official government proceeding.
Federal prosecutors write prosecution memos to their superiors, the U.S. Attorneys or supervisors in the Justice Department, before they may ask a grand jury to indict. And those memos climb to the upper echelons of the Department when prosecutors seek approval to indict a public figure.
In Trump’s case, the approval needed would be that of the highest law enforcement official in the country.
Pointing to McQuade’s op-ed, one of us (Tribe) directed a tweet to his one-time student. “To Attorney General Garland: This prosecution memo by a former United States Attorney, @BarbMcQuade, should save you a considerable amount of time and trouble once you decide that no one is above the law, not even a former president, as you have often said.”
The extraordinary volume of evidence that McQuade collects comes entirely from the public record. Her contribution is to gather it all clearly and effectively in one place.
Much had been written previously about the evidence justifying a criminal investigation of Trump. The novel part of McQuade’s memo is its careful analysis and application of the Justice Department’s “discretionary considerations.” Not every prosecutable case is prosecuted. There must be (i) a substantial federal interest in prosecuting the case; (ii) a judgment that no state prosecution is likely to suffice; and (iii) a conclusion that no non-criminal alternative to federal prosecution is likely to prove adequate.
There can be no doubt as to the first factor. As McQuade writes, Trump and his team’s attempt “to overturn the results of a free and fair election through corrupt means . . . undermined public confidence in our elections . . . and is antithetical to a democracy that chooses its leader through popular elections. . . . ”
Regarding the second factor, McQuade concludes that, although Trump might be prosecuted by the State of Georgia for charges related to the election, those charges “would be limited to Trump’s conduct defrauding the voters of Georgia and would not cover his corrupt conduct toward the other battleground states whose electors he sought to nullify.”
That might not be strictly true, given that Fani Willis, Atlanta’s Fulton County District Attorney, has raised in letters to state officials the possibility of state-based racketeering charges that could include a wide-ranging conspiracy orchestrated by a national organization. But even if Willis is considering charges with extraterritorial dimensions, it is far more appropriate for the United States, with its enormous resources and its capacity to speak for the Nation as a whole, to prosecute a course of conduct so quintessentially national in character.
In any event, with the clock ticking, memories blurring, and alibis and excuses by the guilty being coordinated, Attorney General Garland cannot afford to wait for Willis to make her indictment decision before he carries out a robust investigation and brings it to a decisive conclusion – any more than he can afford to wait until the Select House Committee on the January 6 Attack has completed its deliberations.
Finally, McQuade emphasizes that neither civil suits against Trump nor his February 2021 impeachment afford an adequate alternative to prosecution. A civil suit does not “vindicat[e] . . . the public harm” Trump caused or impose “the penalty of imprisonment . . . necessary to hold Trump accountable for the enormous damage that he has done . . . to public confidence in our elections.”
Nor could Trump’s ultimately unsuccessful impeachment supply a meaningful alternative. The principal – and indeed only substantial — justification cited by Republicans for voting to acquit the former President was purely procedural: given its control of the Senate at the time, the Republican party was able to delay Trump’s impeachment trial until after his term in office had ended. Having maneuvered the situation into that posture, those Republicans were able to invoke Trump’s status as a private citizen to make the legally controversial claim that conviction of an impeached former official by the Senate was an improper remedy for a private citizen.
If anything, however, this procedural wrinkle cuts in favor of the Attorney General’s approving a federal indictment. Indeed, then-Senate Leader McConnell cited criminal prosecution as the appropriate recourse for holding Trump accountable and opposed convicting him in the Senate on that basis.
McQuade raises two informal discretionary considerations unique to a Trump prosecution: its predictably divisive effect and the risk that, if he were acquitted, Trump and his followers would be emboldened in their opposition to the rule of law.
But any reasonable person paying the slightest attention would respond that national healing is not aided by leaving former President Trump howling unperturbed at campaign rallies and elsewhere about the “Stolen” 2020 Election, about the treachery of his disloyal Vice President for failing to do his bidding on January 6, and about the “witch hunt” against the supposed patriots who stormed the Capitol.
And little could “embolden” Trump and his followers more than the ability to claim that, for all the talk of his criminality, he hasn’t even been indicted, much less convicted, of any crime. As McQuade says in her incontrovertible close: “The only thing worse would be not charging him.”
McQuade is not alone in thinking so. On February 20, George Washington University political historian Matthew Dallek explained in the Washington Post why declining to prosecute Trump for fear of touching off violence is like fear of standing up to Vladimir Putin because doing so might trigger a Ukraine invasion. “Not prosecuting Trump has already signaled to his supporters that accountability is for suckers,” Dallek wrote. “The far graver peril in this situation is inaction, a paralyzing refusal to hold Trump criminally liable for his behavior.”
“Trump continues to stir up violence,” Dallek wrote, regardless of whether Trump is prosecuted or not. “He [already] acts as if he remains untouchable,” as by endorsing the anti-vaccination trucker convoys, which included violent tactics, in Canada, and suggesting that they may be coming here.
DC federal district court judge Amit Mehta recognized the peril in his momentous February 18 ruling that Trump is subject to civil suit for his conduct in office, the first time any court has ever so held with respect to actions by an incumbent President. And the court did so because, as the judge wrote, “the alleged facts of this case are without precedent.”
Thus, he explained why any fear of breaking the American norm of not prosecuting a prior President, or fear of politicizing the DOJ, must be set aside in this case. No American President has ever sought to interfere with the transition of power in accord with the people’s will. This President’s words, Mehta’s opinion rightly concluded, were “directed to inciting or producing imminent lawless action and [were] likely to produce such action.”
“Trump’s supporters are watching,” Dallek warned, to see whether lawlessness at the highest rank of American power will be accepted.
The rest of the country is watching, too.