Barb McQuade: A "Model Prosecution Memo" on the Conspiracy to Pressure Vice President Pence

[Nevilledog]

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Barb McQuade
@BarbMcQuade
If DOJ were considering charging Trump, here’s what a prosecution memo might look like. I wrote this based on public info, focused solely on Trump’s efforts to pressure Pence to overturn the election. The only thing riskier than charging is not charging.

justsecurity.org
United States v. Donald Trump
A "Model Prosecution Memo" on the Conspiracy to Pressure Vice President Pence
8:45 AM · Feb 22, 2022

https://www.justsecurity.org/80308/united-states-v-donald-trump-model-prosecution-memo/

Preface

The following memorandum is a model “prosecution memo” analyzing potential charges against former President Donald Trump for his efforts to pressure Mike Pence to abuse his authority as vice president in an attempt to overturn the 2020 presidential election on Jan. 6, 2021. Prosecution memos are prepared by attorneys in criminal cases at the Department of Justice to summarize the evidence and their legal theories for prosecution. Prosecution memos enable supervisors and others in the chain of command to review the evidence, anticipate defenses, and assess the strengths and weaknesses of a criminal prosecution. The Report on the Investigation into Russian Interference in the 2016 Presidential Election[1] prepared by Special Counsel Robert Mueller, for example, was a kind of prosecution memo, though it refrained from reaching a conclusion as to whether a crime was committed and charges should be filed. Prosecution memos generally do so explicitly.

Report on the Investigation into the 2020 Presidential Election: Pressuring Vice President Mike Pence

Public reporting, including governmental documents, indicate that following the 2020 election, President Donald Trump exerted pressure on Vice President Mike Pence to reject the certificates of electors from certain states won by Joe Biden and declare Trump the winner. Under the Twelfth Amendment to the Constitution[2] and the Electoral Count Act,[3] the vice president, as president of the Senate, is responsible for opening the certificates and counting the votes on the sixth day of January following a presidential election. While facts are still being uncovered, public reporting and some of the evidence obtained by the Select Committee to Investigate the January 6th Attack on the United States Capitol show a relentless campaign to coerce Pence into helping Trump retain the presidency. This effort may have been only one of many schemes within a larger strategy to overturn the election.

Looking solely at this aspect of the strategy, at least two federal criminal statutes may have been violated in this episode alone: conspiracy to defraud the United States and obstruction of an official proceeding. Depending on the facts that emerge, other statutes may also have been violated, such as the federal voter fraud statute and seditious conspiracy. Publicly available information also indicates potential violations of state law. This report focuses solely on potential violations of federal law.

I. BACKGROUND ON FEDERAL PROSECUTION

The Department of Justice follows its internal Principles of Federal Prosecution. Those principles are intended “to promote the reasoned exercise of prosecutorial authority and contribute to the fair, evenhanded administration of the federal criminal laws.”[4] The Principles include a two-part directive when considering charges, one based on the sufficiency of the evidence and the other based on the interests of justice. It is useful to think of them as the legal prong and the discretionary prong. The legal prong states: “The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction.”[5] The discretionary prong states that even if the evidence is legally sufficient, charges should be declined if one of three conditions is met: “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.”[6] Certain factors are impermissible considerations in making a charging decision, such as political association, activities or beliefs.[7]

*snip*

[Botany]

1. "The only thing riskier than charging is not charging."

[dem4decades]

2. Make her AG and put Garland on MSNBC.

[spanone]

3. ...K&R...

[LetMyPeopleVote]

4. This is a well done analysis

From this analysis https://www.justsecurity.org/80308/united-states-v-donald-trump-model-prosecution-memo/

V. CONCLUSION
A. The Legal Prong
Based on the facts already known, it appears that Trump, Eastman, and others could be charged with conspiracy to defraud the United States and obstruction of an official proceeding. While potential defenses would need to be assessed, such as First Amendment protection for political speech, there is evidence sufficient to make it probable that convictions could be obtained and sustained. A prosecutor would also need to assess the litigation risk of trying the former president. Would it be probable that a jury could be selected who would be unclouded by political distractions or Trump’s stop-the-steal disinformation campaign? In light of experience in other high-profile cases, it seems likely that a rigorous voir dire process could be conducted to identify jurors who could assess the facts fairly and independent from political considerations.

B. The Discretionary Prong
In this case, even though the legal prong is met, the discretionary prong is the much more difficult question. Considerations under this prong include (1) whether the prosecution would serve a substantial federal interest; (2) whether the person is subject to effective prosecution in another jurisdiction; and (3) whether there exists an adequate non-criminal alternative to prosecution.

1. Substantial Federal Interest

The first factor to consider is whether prosecution would advance a substantial federal interest. Here, the answer is yes. The evidence shows that Trump and others attempted to overturn the results of a free and fair election through corrupt means. Their conduct has undermined public confidence in our elections. This effort is antithetical to a democracy that chooses its leader through the popular election of electors who, in turn, select the president. Substantial federal interests include deterrence and public safety, among others. Here, prosecution is merited to deter Trump or other candidates for public office from attempting to overturn the results of an election ever again. If Trump and his associates are able to avoid criminal accountability, then future candidates, or even Trump himself, will be emboldened to attempt similar crimes. In addition, the safety of our democracy remains vulnerable to future attacks unless the criminal justice system pronounces this plot for what it was – a crime against the United States of America.

[Nevilledog]

5. Kick