Editor’s Note: Donald Ayer served as United States attorney and principal deputy solicitor general in the Ronald Reagan administration and as deputy attorney general under President George H.W. Bush. Norman Eisen, a former ambassador to the Czech Republic and former President Barack Obama’s “ethics czar,” was special impeachment counsel to the House Judiciary Committee in 2019-2020. The opinions expressed here are their own. View more opinion at CNN.
As alarming testimony and facts have continued to emerge about former President Donald Trump’s efforts to overturn the election that he lost, a lively debate has unfolded. Experts are battling over whether and how the former president can and should be held to account.
We believe that the full scope of Trump’s conduct must be investigated by federal authorities, for the same reasons and in the same way they usually investigate credible evidence of major wrongdoing. But we recognize that much is not yet known, and that charging decisions are premature.
Attorney General Merrick Garland’s lifetime of dedication to the even-handed, apolitical administration of justice, combined with his performance of the job to date, make clear that he is well suited to oversee the process and make the ultimate decisions.
On one side of the debate, legal scholars and former prosecutors have called for a federal criminal investigation on the grounds that it is essential to defend the integrity of our system of government. They point in part to evidence from eyewitnesses and documents alike that Trump repeatedly tried to overturn the election based on outright lies.
We take exception to those who say there is “little reason” to open an investigation. Trump’s statements like “I just want to find 11,780 votes” (made to the Georgia Secretary of State Brad Raffensperger) and “just say the election was corrupt and leave the rest to me” (made to Trump’s own acting attorney general) suggest Trump knew that he had lost and was openly procuring fraud.
There was no reasonable basis for him or anyone to genuinely believe he had won. Any notion that Trump was articulating an honest but misguided belief is belied by his long record of lies. And claims that the criminal statutes for election fraud and related offenses don’t fit here are wrong. The Justice Department regularly prosecutes public officials for asking election officials to do things like “adding ballots to increase the vote totals for certain candidates,” which is what Trump allegedly asked for here.
All of that and much more justify a federal investigation. But we also recognize the challenges that choosing to prosecute Trump would represent. Even if we disagree with those who say those concerns should preclude an investigation, the difficulties must still be addressed.
For instance, commentators have noted that prosecution of the former president – especially if for things he did while president – may lead many to allege political motives. That would make more difficult the restoration of trust in evenhanded justice that is so essential after former Attorney General William Barr’s gross political misuse of the department. The idea of a prevailing presidential candidate’s Justice Department prosecuting his predecessor for things done while serving as president sounds like the stuff of dictatorships – in the abstract.
Both President Joe Biden and Garland are sensitive to this as well. But facts matter. And a president working to destroy our system of democratic electoral government is arguably a concern on a level by itself. The stronger and more compelling the direct and admissible evidence becomes that Trump did exactly that, the clearer it becomes that it must take precedence.
That is why a thorough investigation is needed, one that does not prejudge the outcome and so is as credible as possible, even to partisans.
Then there is the practical argument that a criminal case against Trump for his post-election conduct will, if brought, be very tough, turning as it does on the jury’s assessment of Trump’s state of mind. No doubt that is true, and the last four years make clear that he is, if nothing else, a very accomplished liar.
But the ability to prove a case against a chronically dishonest defendant is truly a prosecutor’s question, and one that arises regularly in complex cases where particular actions only become criminal when done with a certain state of mind. While it is not possible to read anyone’s mind, powerful inferences about intent or purpose are often possible from surrounding circumstances. Prosecutors (and juries) make such inferences all the time.
Should we conclude from the seriousness of such challenges that no investigation is ongoing? Absolutely not. There are powerful reasons for not disclosing any ongoing investigation. Indeed, that is how the system is supposed to work.
The basic idea is that the government, in fairness to all concerned, should investigate wrongdoing as quietly as reasonably possible, and inform the public when it is ready to take public action – either in the form of charges being filed or the termination of an investigation with no charges in an instance where the existence of the investigation has unavoidably come to light.
More specifically, departmental policy expressly rules out publicly acknowledging or discussing an investigation while it is underway. This basic principle has been flagrantly ignored in recent years by FBI Director James Comey discussing Hillary Clinton’s emails days before the 2016 election, and then Barr’s far more overtly political handling of information supposedly derived from the Durham investigation into purported misconduct investigating Russian interference.
Thus, we can be thankful that Garland is not acting like his predecessor, but instead scrupulously following the spirit and letter of longstanding policy by simply remaining silent on what, if anything, is to be done about Trump. That is how it should be.
Of course, we don’t know whether the Justice Department will ever bring criminal charges against Trump. We do know that the attorney general is acting forcefully to address some major electoral and national security concerns, as well as to hold some Trump associates accountable. These include the hundreds of prosecutions of those involved in the January 6 insurrection, and major initiatives to protect voting rights, counter domestic terrorism and address critical cybersecurity concerns.
The department has also done the right thing in the parallel civil litigation arising from the January 6 insurrection, for example, rejecting the absurd claim by Alabama Rep. Mo Brooks that he should be indemnified by the government for claims he urged an attack on the government.
Other encouraging signs include the indictment of Thomas Barrack, chairman of Trump’s inaugural committee, on charges including failing to register as an agent of a foreign government, and the investigation of Rudy Giuliani in connection with his Trump-related activities in the Ukraine. And we know that the Justice Department is generally allowing critical evidence concerning Trump’s efforts to steal the election to come forward and be developed.
The decision on whether to prosecute Trump federally is in good hands with the attorney general and his professional staff. Their rigorous review process, along with Garland’s long record of making sober judgments under the law, separate from politics and parochial concerns, can be trusted to redeem the national interest and secure public trust.