In hindsight, Donald Trump’s intentions could not appear clearer. During the final months of the 2020 Presidential race, he systematically conducted a disinformation campaign that convinced many of his supporters the election would be stolen by Democrats. After losing, he doubled down on those false claims and repeatedly pressured state election officials, Justice Department prosecutors, federal and state judges, members of Congress, and the Vice-President to overturn the results. After those efforts failed, he appeared at a rally in Washington, D.C., where he urged thousands of his supporters to stop Congress from certifying his defeat. For hours, as they stormed the Capitol, he failed to act.
Those steps, the leaders of the congressional committee investigating the January 6th attack on the Capitol contend, seemingly constitute a crime. But, based on the evidence made public so far, the unprecedented nature of Trump’s actions—together with the vagueness of laws regarding the certification of Presidential elections, legal loopholes, and his manipulation of others—could allow the former President to escape being criminally charged for his role in events surrounding the attack.
A congressional staffer with knowledge of the committee’s investigation said that it is ongoing and “too early to say” what it will yield. The staffer pointed out that Trump has a history of trying to avoid explicitly implicating himself in wrongdoing over the years, as he did in the Oval Office call with Ukraine’s President—which, nevertheless, led to his first impeachment. “Trump seems to have been very careful never to give an order—to strongly insinuate what should happen rather than giving an order,” the staffer told me, comparing Trump with Henry II of England, who famously (perhaps apocryphally) engineered the murder of the Archbishop of Canterbury by signalling to subordinates his desire to be free of the religious leader without explicitly ordering it. The staffer, who asked not to be named, invoked a phrase said to have been uttered by the twelfth-century king: “ ‘Who will rid me of this meddlesome priest?’ ”
Recent statements by the committee chair, Bennie Thompson, and the vice-chair, Liz Cheney—one of only two Republicans on the panel—have raised expectations that the panel will refer Trump to the Justice Department for criminal prosecution. Such a step would increase the political pressure on Attorney General Merrick Garland to prosecute Trump. In a television interview on Sunday, Thompson said that the panel is examining whether Trump committed a crime: “If there’s any confidence on the part of our committee that something criminal we believe has occurred, we’ll make the referral.” And Cheney, in a speech last month, mentioned a specific charge: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”
Federal prosecutors in…