Despite overwhelming evidence of guilt, the DOJ has a tough decision around prosecuting Trump

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As many of us watched the first public congressional hearings from the Jan. 6 committee investigating the insurrection last Thursday, we saw the seven members carefully lay out how they intended to prove former President Donald Trump’s guilt in attempting to overturn the 2020 presidential elections. And even though they will continue to reveal more evidence in the coming days, the question that looms is whether or not Attorney General Merrick Garland’s Justice Department has the guts to actually prosecute Trump.

Garland gave a speech at Harvard University’s commencement ceremony last month, where mentioned he would “follow the facts whether they lead.” And as NBC News reports, Lisa Monaco, Garland’s deputy attorney general, told CNN, “Federal prosecutors are reviewing fake Electoral College certifications that declared former President Donald Trump the winner of states that he lost… We've received those referrals. Our prosecutors are looking at those, and I can't say anything more on ongoing investigations.”

But following leads and taking notes during the House select committee hearings is one thing—prosecuting a U.S. president is a whole other beast.

RELATED STORY: In case you missed it: Here’s how Liz Cheney skewered her GOP colleagues in Jan. 6 committee hearing

Barbara McQuade, an NBC legal analyst and former U.S. attorney warned that filing criminal charges against Trump in his attempt to subvert the elections “will very likely spark civil unrest, and maybe even civil war.” However, “not charging [Trump] is even worse because not charging means you failed to hold someone criminally accountable who tried to subvert our democracy,” she explained.

Indicting Trump would be a first in U.S. history. The only case even remotely close was that of former President Richard Nixon, who resigned from office in 1974 before his expected fate of impeachment for his role in Watergate. Former President Gerald Ford later pardoned Nixon prior to the possible filing of criminal charges.

The other issue Garland is likely facing is the ethics of whether or not prosecuting Trump is in the best interest of the nation—an issue that essentially pits the two parties against each other.

“I don’t think we want to be the kind of country where this happens often,” McQuade told NBC News.

Joyce Vance, a former U.S. attorney and NBC News legal analyst said, “Prosecuting Trump destabilizes the country more than it puts it upright.”

Committee members have been clear from the start that all of the accusations against Trump will be backed up with evidence and testimony from the players involved—some who’ve come forward voluntarily and others who’ve been subpoenaed.

Rep. Adam Schiff has said that he’s expecting the DOJ to “investigate any credible allegation of criminal activity on the part of Donald Trump,” the Associated Press reports, 

Schiff added:

“Once the evidence is accumulated by the Justice Department, it needs to make a decision about whether it can prove to a jury beyond a reasonable doubt the president’s guilt or anyone else’s. … But they need to be investigated if there’s credible evidence, which I think there is.”

According to CNN, Rep. Jamie Raskin has said he will not “browbeat” Garland, but the committee has clearly highlighted the many crimes Trump has committed.

“I think that he knows, his staff knows, the U.S. attorneys know, what’s at stake here. … They know the importance of it, but I think they are rightfully paying close attention to precedent in history as well, as the facts of this case.  

“So we have laid out in different legal pleadings the criminal statutes that we think have been violated. And Judge Carter in California said he thought it was likely that President Trump committed federal offenses.”

Huh? Powerful @AP & @axios headlines. But that's not what AP report ( or quotes in Axios actually say.@RepAdamSchiff comments apparently refers to threshold for opening investigations (not indictment). Here's also @RepRaskin transcript in context👇

— Ryan Goodman (@rgoodlaw) June 13, 2022

We talk to gun control advocate and executive director of Guns Down America, Igor Volsky on Daily Kos' The Brief podcast