The factors Attorney General Merrick Garland is likely weighing as he mulls prosecuting Trump
he House committee investigating the Jan. 6 attack on the Capitol has laid out its case that Donald Trump knew he lost the 2020 election, and that he nevertheless spread lies about election fraud as part of a broad effort to overturn Joe Biden’s win, pressured state election officials to change the results, orchestrated an effort to send fake electors to Washington, and usedto persuade Vice President Mike Pence to name Trump the winner, including inciting a mob to go after him.
Bringing charges against Trump related to the Capitol attack could require showing evidence that he had knowledge beforehand of specific plans to breach the Capitol Building and disrupt the proceedings, says Solomon L. Wisenberg, a former deputy independent counsel during the Clinton-era Whitewater investigations. “It’s a high bar,” Wisenberg says.
Federal prosecutors may consider whether there is enough evidence to charge Trump with aiding a seditious conspiracy, or other allegations such as conspiracy to defraud the United States and obstructing an official proceeding. “It would be completely wrong for those people not to be held criminally responsible for their actions,” she says., a lawyer who advised Trump after the election and insisted that alternate slates of electors should be sent to Washington to vote Trump into office. “The best path that DOJ would have would be to build a case against Eastman and then flip him on Mr. Trump,” says Renato Mariotti, a former federal prosecutor.