Here’s What Garland Is Weighing as He Mulls Charging Trump

The 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 used multiple tactics to persuade Vice President Mike Pence to name Trump the winner, including inciting a mob to go after him.

Each hearing has brought more attention to the Justice Department. There has also been increased interest in the possibility that Attorney General Merrick Galrland might choose to bring charges against a former President. The Washington Post reported that federal prosecutors issued subpoenas to investigate Wednesday’s attack in Georgia. It could indicate that the Justice Department expands its case. A separate investigation by Fulton County District Attorney Fani Willis in Georgia has empaneled a grand jury and appears to be examining whether Trump violated state law when he asked Georgia’s Secretary of State, Brad Raffensperger, to “find” enough votes for Trump to win.

But despite all of the bombshells the committee has put forth about Trump’s efforts, legal experts say the threshold that the Department of Justice needs to meet before it is willing to prosecute the former President is far higher than much of the public realizes.

In order to bring Trump charges related to the Capitol attack, you will need to prove that Trump had prior knowledge of plans to enter the Capitol Building. Solomon L. Wisenberg was a former independent counsel under Clinton’s Whitewater investigations. “It’s a high bar,” Wisenberg says. “What did Trump do? He conspired? Did he have knowledge beforehand that this was going to be attempted if he wasn’t successful in convincing VP Pence?”

Garland said earlier this year that the Justice Department’s work was not done and that the department “remains committed to holding all January 6th perpetrators, at any level, accountable under law.”

As with most criminal investigations, prosecutors started by looking at the “front-line actors” of the crime. These are those who, according to prosecutors, broke through security lines into Capitol and entered the Capitol with the purpose of stopping the official certification of electoral results. The Department of Justice arrested over 840 individuals in connection to this attack, and has charged many more. More than 280 people have been accused of corruptly hindering, influencing or impeding an administrative proceeding or attempt to do so. Members of far-right Proud Boys were also accused by federal prosecutors with conspiracy to commit seditious acts in connection to the Capitol attack. This trial is expected to proceed later in this year.

Federal prosecutors could consider whether Trump is guilty of helping a seditious conspiracies or another charge such as conspiracy against the United States and obstruction of an official proceeding.

Wisenberg states that obstruction of a congressional proceeding can be a crime. “So who knew about it and helped it and planned it? That’s the big question and that’s what Garland should be looking at. And if you look at the way that these indictments are coming up, the Proud Boys and all that, I assume they’re building it from the bottom up.”

Melanie Sloan, a former federal prosecutor who is now a senior advisor to the government watchdog group American Oversight, says that it will be “shocking” if the Department of Justice doesn’t bring charges against people around Trump who, the committee has shown, were orchestrating the effort to overturn the election results. The prosecutions so far have targeted “the lowest level players, the people who were completely responsible for their actions for going into the Capitol but manipulated by much higher folks,” Sloan says, adding that the department needs to ultimately pursue those “higher folks” as well.

“It would be completely wrong for those people not to be held criminally responsible for their actions,” she says.

John Eastman may hold the key to making a case for Trump. He was a lawyer who advised Trump following the election, and insisted on alternate lists of electors being sent to Washington to help Trump win. “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.

As the investigation moves away from the Capitol Building attack, it is becoming more difficult for prosecutors to collect evidence to support criminal intent. For example, it would be difficult for prosecutors to prove that Trump, who isn’t a lawyer, was in a position to assess the legality of Eastman’s plan to seat fake electors, says Mariotti.

Wisenberg states that it would be difficult to charge Eastman with providing legal advice on how election results might be overturned. For one, advocating a constitutional interpretation, even one that isn’t widely shared, could be considered protected speech. “I’m very skeptical of the efforts to turn into a crime the mere idea that you are not proceeding according to the Electoral Count Act or that you are advising Vice President Pence that he has the power to refuse to certify,” Wisenberg says.

Watergate: Echoes

Fifty years ago, prosecutors investigating criminal activity in the Nixon administration used the Senate investigation into Nixon’s Watergate abuses as a jumping off point. Richard Ben-Veniste, a former special prosecutor during the Watergate investigation, says the Jan. 6 committee’s investigation could serve a similar function, providing the Justice Department valuable information that Garland’s team can expand upon.

“In Watergate, we built on the evidence gathered by the Senate select committee on Watergate. But we were able to go further in compelling testimony and of course obtaining critical evidence, most strikingly, in the form of presidential tape recordings,” Ben-Veniste says.

Four dramatic hearings by the Jan.6 committee have revealed details that prosecutors may examine in order to decide whether they will bring Trump criminal charges for conspiring to aid another person. Rep. Liz Cheney, a Republican from Wyoming and the committee’s vice chair, said at the first hearing on June 9 that when Trump’s White House staff was asking him to call off the violent mob that had breached the Capitol Building, Trump initially refused, saying the rioters were “doing what they should be doing.”

The committee has tried to prove that Trump knew was being dishonest when he lied in public about election fraud, which could be a contributing factor in establishing criminal intent on Trump’s part. On June 13, the committee heard testimony from the accused that Trump repeated the lie about winning the election after being told by Richard Donoghue, Acting Attorney General Jeffrey Rosen, and Richard Donoghue by campaign officials that his election fraud claims were disproven.

At the committee’s third hearing on June 16, lawmakers revealed evidence that Eastman told Trump that Eastman’s own plan to get Pence to block the certification of Electoral College votes in Congress was illegal, according to testimony. The committee also revealed that Eastman later contacted Trump’s personal lawyer, Rudy Giuliani, asking for a presidential pardon. “I’ve decided that I should be on the pardon list, if that is still in the works,” he wrote, according to an email obtained by the House panel.

The committee displayed a deposition taped by Republican National Committee Chair Ronna McDaniel on June 21. She stated that Trump had been in a telephone call where the RNC was asked for help in gathering fake elector slates. This was a direct evidence of his involvement in the scheme.

The fifth hearing, scheduled for Thursday afternoon, will focus on Trump’s interactions with his Justice Department after the election.

The hearings revealed that federal prosecutors could use methods unavailable to Congress for digging deeper. “For example,” Ben-Veniste says, “the department can compel through subpoenas the testimony of reluctant individuals and if necessary grant immunity.”

Granting immunity “is a very potent arrow in the quiver of federal prosecutors,” he says.

Trump’s next move

Garland has to make many complicated calculations as he thinks about charging Trump. But he is also facing speculation that Trump will announce his intentions to run again. If the Department of Justice decides to accuse Trump of bribery, it could increase political tensions. To avoid it being perceived as a conflict, Garland could appoint an independent counsel to examine Trump.

TIME spoke with Jamie Raskin (Democrat from Maryland) who told TIME these fears shouldn’t deter Justice officials to examine any crimes Trump might have committed. Raskin suggested that Trump’s actions would be a terrible precedent. “If that’s the case, then, you know, defense lawyers across the country should realize that’s the first thing they should tell their murder clients and rape clients to do: announce for president,” Raskin says.

Norm Eisen, a Brookings Institute senior fellow who served as special counsel for the House’s first impeachment of Trump, says those convinced Garland won’t pursue Trump are jumping to conclusions. “I think it’s premature to say it’s reluctance,” he says. “The people who feel it’s reluctance just don’t understand the pace of federal criminal investigations.”

The House committee continues to seek more evidence. Representative Bennie Thompson (Democrat from Mississippi) told reporters Wednesday that he had postponed a Monday hearing about the Proud Boys’ and Oath Keepers’ actions because it needed to examine new information received by the committee. Thompson stated that more hearings are planned for July.

Federal prosecutors may also be interested in digging deeper into the evidence uncovered by the House Select Committee. On June 15, federal prosecutors wrote a letter to Timothy Heaphy, the House Select Committee’s chief investigative counsel, asking the committee to speed up its plans to hand over transcripts of all of the witness interviews the committee has conducted.

—With reporting by ERIC CORTELLESSA

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