Since the initial hearing of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol, there has been controversy about whether to prosecute former President Trump. It is framed as a binary choice between the upheaval of indicting the likely 2024 Republican presidential nominee versus an existential threat to American constitutional democracy with its doctrine that no one is above the law.
An important role of criminal prosecution is deterrence. Convictions have significant consequences. As a former federal prosecutor who led investigations into white-collar crime, official corruption, and organized crime, methodically working up the chain and convicting underlings is underappreciated.
Over 850 capitol rioters have been indicted. Some have cooperated with the investigation. Among their refrains is that they were called to the capitol to stop the electoral certification of Joe Biden. While these are mostly foot soldiers, 18 U.S.C. Sections 2, 3, and 4 criminalize their accomplices, those engaged after the fact as accessories, and persons who actively concealed their crime. Those sections have significant punishments and open doors to investigate and hold superiors and facilitators accountable.
As Attorney General Garland confirmed, the Department of Justice is investigating leadership and those who carried out leadership’s intentions. In organized crime investigations, that is delineating caporegimes (capos), consiglieres, underboss, and boss’s roles in effectuating the godfather’s plan. Likewise, official corruption investigations are enhanced by obtaining underlying(s) testimony and importantly deflates omerta – conspiratorial silence.
Additional inquiries include interference with certification under the Electoral Count Act. That act makes it a crime to submit false writing punishable by imprisonment of up to five years. In seven states 84 persons signed fake slate of electors. In Georgia, those electors have received target letters. These potential state and federal prosecutions as well as those who abetted them are important in deterring future presidential elections interference.
Some rioters have been indicted for obstruction of an official proceeding and for conspiracy to defraud the United States. The prosecution of these felonies lay the groundwork and appears to also apply to John Eastman, Rudy Giuliani, Roger Stone, Michael Flynn, Alex Jones, Ali Alexander, and Mike Lindell – all of whom according to reporting had direct or indirect contact with former White House Chief of Staff Mark Meadows.
Two teams of conservative filmmakers shot footage including in the Willard Hotel war room, where reportedly Roger Stone, John Eastman, and Rudy Giuliani undertook January 6th planning. While these documentary filmmakers refused to turn over their footage to the January 6th committee, a criminal subpoena would be difficult to flout.
The federal wire fraud statute for knowingly soliciting misappropriated funds carries up to 20 years imprisonment, restitution to victims, and fines. It is a basis for investigating an estimated $250 million in Stop the Steal donations and how those funds were utilized. Among likely subjects are Kylie Jane Kremer, Jennifer Lawrence, Dustin Stockton, Caroline Wren, and Kimberly Guilfoyle.
Some potential crimes were committed by septuagenarians and octogenarians. One or more may decide it’s better to cooperate than spend the rest of their lives in jail hoping for a pardon or commutation.
The trial of those indicted would be widely covered and if convicted would be a powerful deterrent to those considering similar conduct in 2024. Should they be convicted and/or cooperate, their convictions and testimony help defuse blowback from indicting those most responsible.
Deterring future election misconduct at all levels is paramount in preserving democracy. As to culpable leaders, methodically working the way up the chain to culpable leaders is the best approach. As American citizens, they too are subject to equal justice under the law.
Malcolm Lazin is a former Assistant U.S. Attorney. He is the recipient of the U.S. Attorney General’s Distinguished Service Award, the Department of Justice’s highest honor. He served as the Chair, Pennsylvania Crime Commission and was the Republican candidate for District Attorney of Philadelphia.