(The Hill) — Republican lawmakers are warning that any Department of Justice prosecution of former President Donald Trump will turn into a political battle, setting a high bar for Attorney General Merrick Garland to act on an expected criminal referral from the House’s Jan. 6 committee.
The House select committee investigating the Jan. 6 attack on the Capitol previewed its likely referral to the Justice Department in a court filing made public last week and experts say the evidence assembled by House investigators would provide a strong impetus for prosecutors to act.
But Republican lawmakers and strategists warn that any federal prosecution of Trump will be accused of being politically motivated, boost Trump within the GOP and turn into a partisan food fight at a time when President Joe Biden is pivoting to the center and trying to keep his 2020 campaign promise to unify the country.
Sen. Mike Braun (R-Ind.) said any criminal referral from the House “would probably have as much political taint on it as you can get.”
“To me, it’s clearly politically driven,” he said.
Braun said Democrats are scrambling to change up the political narrative in response to Biden’s moribund job approval ratings and predicted launching a federal prosecution of Trump would be viewed along partisan lines.
“At least half the country would say it’s all politically motivated,” he said.
Sen. Thom Tillis (R-N.C.) said “the Department of Justice has a high bar” to clear before launching an investigation of Trump and raised concerns over the partisan fighting that surrounded the formation of the Jan. 6 committee.
Speaker Nancy Pelosi (R-Calif.) blocked House Minority Leader Kevin McCarthy’s (R-Calif.) picks to serve on the panel, Reps. Jim Jordan (R-Ohio) and Jim Banks (R-Ind.).
She instead tapped Reps. Adam Kinzinger (R-Ill.) and Liz Cheney (R-Wyo.), two outspoken critics of Trump’s election fraud claims, to participate in the Democrat-led investigation.
“I don’t mind looking into the events but I think that Speaker Pelosi did not do the process justice by the way the members were ultimately seated,” Tillis said. “It’s going to be perceived as political.
“Everybody is going to perceive the referral as a conviction on one side and they’re going to view it as the continuation of a witch hunt on the other side,” he added. “The bar that the House committee has is far lower than anything that would ultimately result in moving forward with a federal investigation and a conviction.”
Republican strategists close to Trump are predicting a battle royale if the Department of Justice moves to indict the former president.
“I think it could backfire in a way that they have no clue,” said Republican pollster Jim McLaughlin. “I think it’s going to backfire because it just so political and it’s tainted.
“The country wants to move on. Nobody is proud of what happened on Jan. 6 but people are like, ‘With all the problems we have going on in the country right now, this is going to be the focus of the Democrats?’”
Sen. Lindsey Graham (R-S.C.), a close Trump ally and senior member of the Senate Judiciary Committee, told The Hill Thursday any recommendation to prosecute from the House select committee would lack credibility.
“I don’t see anything coming out of this committee not tainted by politics,” he said.
The likelihood of stirring up a major political storm with a federal investigation of Trump could serve as a powerful disincentive for the Justice Department moving forward if it receives a recommendation to prosecute from the Jan. 6 committee.
Biden privately told advisers after his victory in the 2020 election that he didn’t want his presidency consumed by investigations of Trump, NBC News reported at the time, citing five people familiar with the discussions.
A filing by lawyers for the Jan. 6 panel in a California federal court as part of its effort to obtain conservative lawyer and Trump adviser John Eastman’s emails is widely seen as a precursor to a criminal referral to the Justice Department later this year.
The lawyers wrote the committee has “a good-faith basis for concluding that the president and members of his campaign engaged in a criminal conspiracy to defraud the United States” by obstructing the counting of electoral votes during last year’s joint session of Congress.
Senate Democrats, even though they all voted last year to convict Trump on the impeachment charge of inciting the Jan. 6 insurrection, have been careful to avoid the appearance that Garland is under political pressure to bring charges. They say the decision is up to Garland alone.
But some Democratic senators privately caution that Garland needs to win any case he brings against Trump. They worry that the former president would seize on an acquittal as complete vindication, much like he did after former special counsel Robert Mueller declined to bring charges after investigating allegations of collusion between Russian officials and the Trump campaign in 2016.
Albert Alschuler, a professor emeritus of law and criminology at the University of Chicago Law School said the Department of Justice would appear to have a strong case against Trump based on the public evidence of his attempts to overturn the 2020 presidential election.
“It looks like a quite strong case for criminal prosecution, particularly conspiracy to defraud the United States and maybe obstruction of official proceedings charge,” he said. “I see a lot of comment and some people seem to be saying, ‘Well, it’s so hard because they have to prove that the defendant really was lying by projecting all these false claims, you have to prove that he actually did not believe them himself.’
“But it seems to me the evidence is pretty strong,” he added. “Juries infer intent from the circumstances all the time, and they infer a criminal intent beyond a reasonable doubt.”
Alschuler noted that multiple advisers including former Attorney General William Barr told Trump directly that his claims of widespread election fraud were untrue.
Barr discussed his conversations with Trump shortly after the 2020 election in a recent interview with NBC’s Lester Holt.
“I told him that all this stuff was bullshit about election fraud and, you know, it was wrong to be shoveling it out the way his team was,” Barr recounted. “He started asking me about different theories and I had the answers. I was able to tell him this is wrong because of this…. He obviously was getting very angry.”
Alschuler noted that Barr “was one of several people who did that.”
He pointed out that “with conspiracy to defraud what you have to show is knowledge is that what you’re saying is false.”
He said, however, that while the evidence against Trump appears to support a criminal prosecution, Garland may hesitate to pull the trigger because of the likely political backlash.
“Garland has said he will follow the evidence wherever it leads. If an overwhelming case is presented he may prosecute but I think he would probably prefer not to. That’s just a guess. Even if it’s a very strong case, I think they’re worried about the fact that we’re talking about prosecuting somebody who has millions and millions of devoted, passionate followers who would see this as a political prosecution and be very angry, possibly violent,” he said.
Republicans also warn that any federal prosecution of Trump would likely be answered by congressional investigations of Biden and his son Hunter if Republicans take over the House and possibly the Senate in the 2022 midterm elections.
“I wonder if they’re ever going to file charges against Hillary Clinton for what she did after 2016,” said Sen. Ron Johnson (R-Wis.), who would become the chairman of the Permanent Investigations subcommittee of the Senate Homeland Security Committee if the control of the chamber flips.
Ford O’Connell, a Republican strategist, said a prosecution “will only make Trump stronger with the GOP primary voters.”
“If your goal is to make sure Donald Trump is the nominee in 2024 for the Republicans, then, by all means, proceed with this. You’re just going to make him stronger,” he said.