Trump was charged with Espionage but he still must be charged for his Jan 6 crimes if we want to remain a democratic Republic

Our Republic depends on this

We now know that Donald Trump was charged under the Espionage Act as well as charged with obstruction of justice, destruction or falsification of records, conspiracy and false statements-per his lawyer Jim Trusty’s comments to CNN on Thursday night. This is a big step towards accountability and DOJ deserves applause for doing the right thing based on the law.

However, We are now more than two years and five months since Trump’s Jan 6 attack on our Capitol that was part of his attempted coup--yet he has still not been charged with even one crime.

Looking back over the past two years, some of my fellow Democrats have told me, “Relax, Merrick Garland has got this,” or this is not an episode of “Law & Order.”  Yet here we are now nearly two and a half years later and in that time, DOJ has prosecuted not just hundreds of people who waged the attack--but even people like Oath Keepers leader Stewart Rhodes who was charged with seditious conspiracy, convicted in an eight week, complex trial and recently sentenced to 18 years in prison. DOJ has also prosecuted and convicted other leaders of the Oath Keepers and Proud Boys for seditious conspiracy as well as “obstructing Congress’s certification of the 2020 presidential election results and conspiring to prevent Congress and federal officers from discharging their duties.”

Those were all intricate cases lasting weeks--and even months--with prosecutors presenting a long list of witnesses and a vast amount of evidence. Given that, there is no way anyone can now say that if DOJ wanted to charge Trump for his role in attempting to overturn the 2020 election—from his behind the scenes efforts to his role in inciting the Jan 6 attack—they lacked the resources or capability to do so. What DOJ lacked was the will.

All of the crimes committed by those prosecuted for Jan 6 related crimes were in the service of and at the urging of one person: Donald J. Trump. In fact, the Jan 6 committee summed it up so well with this line in their report: “The central cause of January 6th was one man, former President Donald Trump, whom many others followed. None of the events of January 6th would have happened without him.”

And the Jan 6 committee’s report laid out in great detail the evidence that supported their recommendation to DOJ that Trump be prosecuted for four crimes: 1. Obstruction of an official proceeding; 2. Conspiracy to defraud the United States, 3. Conspiracy to make a false statement and, 4. Incitement, rebellion or insurrection.  

For example, the Jan 6 committee detailed how Trump engaged in the “Obstruction of an Official Proceeding” in violation of 18 U.S.C. § 1512(c), which makes it a crime to “corruptly” “obstruct, influence, or impede any official proceeding, or attempt to do so.”  The report provided concrete evidence in support of this assertion, such as Trump’s “plan to get Vice President Pence to prevent certification of the election at the joint session of Congress.”  This crime carries a penalty of up to 20 years in prison.

Another Trump crime detailed by the Jan 6 committee was his “Conspiracy to Defraud the United States” in violation of 18 U.S.C. § 371. This law provides that it’s a crime if two or more people engage in a plan to “defraud” the United States. The report explains that “President Trump entered into an agreement with individuals to obstruct a lawful function of the government (the certification of the election).” The evidence cited in support ranges from Trump pressuring Pence to obstruct the Jan 6 certification to the fraudulent elector scheme—both of which Trump was personally involved.

Let’s be clear, the charges Trump could face in connection with his illegal handling of classified documents at Mar-a-Lago and other locations are very serious. As former federal prosecutor Glenn Kirschner explained on my SiriusXM show on Friday, the recent bombshell reporting that Trump had shared information—after he left office--with people at his Bedminster, New Jersey golf course about secret military plans to attack Iran would constitute a violation of Espionage Act, 18 U.S. Code Section 793. And even before that latest jaw-dropping revelation, Trump had already potentially violated the Espionage Act—as noted in the DOJ’s application for a warrant to search Mar-A-Lago last August—since he was still in possession of the classified  documents after leaving the White House and failed to comply when the government asked him to return them. That constitutes a felony punishable up to 10 years in prison.

And as a reminder, another potential charge listed in the DOJ’s search warrant application was Section 1519 of Title 18, which makes it a crime to conceal records to obstruct an official effort.  If prosecutors can show that Trump knew he still had files responsive to the National Archives’ efforts to take custody of presidential records and the Justice Department’s subpoena for files marked as classified--and he intentionally caused his subordinates to fail to turn them all over-- he will have violated this law that comes with a potential prison sentence of up to 20 years per offense.

As Kirschner stated on my show—as you can watch below—about these potential crimes by Trump, “This is big ticket criminal misconduct.”  He added, echoing the sentiment of Weissman, that charges are imminent: “June is the month we have all been waiting for.”

But regardless of if Trump is charged with those crimes or not, we must not stop clamoring for Trump to be prosecuted for his efforts to overturn the 2020 election. As I’ve repeated many times: Our criminal justice system is predicated upon the idea of punishment and deterrence. We punish people who commit crimes to deter that person and others from repeating that same conduct.

Conversely, if Trump is not prosecuted for attempting to overturn the 2020 election, it means Trump or others can mimic that exact same behavior in the future without fear of punishment.  DOJ cannot allow that to be the message. At least not if we want to remain a democratic Republic.

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