By Ken DilanianNBC
News
Republican Congresswoman Liz Cheney's powerful comments at the Congressional hearing on the insurrection at the US Capitol on January 6, 2021, which sounded to many like the statements of a lawyer in a criminal trial, have renewed in circles. legal debate over whether the Justice Department could, and should, prosecute Donald Trump.
With mounting evidence that Cheney and others say show the criminality of Trump's efforts to overturn the 2020 election results, Attorney General Merrick Garland may have to determine whether to prosecute a former president is a matter of national interest.
A person familiar with the case told NBC News that there have already been discussions at the Justice Department about the big implications of making a case against Trump.
So far, no public evidence has emerged that the former president has become a criminal target.
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"We will follow the facts wherever they take us," Garland said in his commencement address at Harvard University last month.
His deputy, Lisa Monaco, has confirmed that prosecutors were looking into legal consequences for those who participated in schemes that fueled bogus Electoral College rolls that declared Trump the winner of states where Joe Biden won.
Bringing criminal charges against Trump in connection with his efforts to nullify the election "will most likely lead to civil unrest and perhaps even civil war," said Barbara McQuade, an NBC legal analyst and former federal prosecutor.
[“It will change history.” Committee investigating Capitol attack prepares for first public hearing]
However, he also added: "I think not charging is even worse, because not charging means someone who tried to subvert our democracy could not be held criminally accountable."
Either way, "it's a momentous and unprecedented decision, and it's not as easy as some people might imagine," said Chuck Rosenberg, a former federal prosecutor and former head of the Drug Enforcement Administration who is now a legal analyst for NBC News.
For some time, the possibility of a criminal case against Trump has been a clear choice for legal experts.
In March, a federal judge ruled in a civil case that
Trump "probably" committed federal crimes by trying to obstruct Congress' counting of
Electoral College ballots on Jan. 6, 2021, citing two statutes: obstruction of an official proceeding and conspiracy to defraud the United States.
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At the time, a Trump spokesman called the judge's claims "absurd and baseless."
The former president has always denied all irregularities.
In his opening remarks, Cheney tried to expose all the elements of what amounts to a criminal plot.
"For several months, Donald Trump oversaw and coordinated a sophisticated seven-part plan to nullify the presidential election and prevent the transfer of presidential power," he said.
As Cheney described it, Trump's alleged misconduct went far beyond allegations that he had incited the crowd that stormed the Capitol on Jan. 6.
The congresswoman said
the former president had committed fraud against the American public by making false election claims
and then trying to get government officials to act on those claims.
At key moments, they refused to do so.
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Trump "corruptly planned to replace the attorney general of the United States so that the Justice Department would spread his false claims that the election was stolen," Cheney said, and "corruptly pressured state legislators and election officials to change the election results."
Trump's campaign to get Vice President Mike Pence to turn away state voters and block voter certification on Jan. 6 "was illegal and unconstitutional," he said.
[Trump and his two eldest sons will testify in investigation into family business]
Summarizing Trump's conduct, he said the public should be aware that "the Justice Department is currently working with cooperating witnesses and, to date, has only released a portion of the information it has identified in encrypted communications and other sources. ".
That information has been revealed in various indictments, but by mentioning it in the context of Trump, Cheney seemed to imply that it was relevant to determining his guilt.
Many legal experts said it would not be necessary to link Trump to the mobs that stormed the Capitol to impeach him.
They claim that there is ample evidence that he participated in a corrupt plan to annul the elections.
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"I can imagine an indictment that includes all seven schemes. But if the Justice Department can prove just one, that would be enough," McQuade said.
“There are a lot of actions being taken that could qualify as conspiracy to obstruct election certification,” said Randall Eliason, a former federal prosecutor who is currently a professor at George Washington University School of Law.
"This was a multifaceted conspiracy that actually lasted a couple of months."
According to Eliason, the assault on the Capitol "ended up being kind of a useful tool in that conspiracy. Whether or not that was part of the initial plan, it certainly became something that furthered the conspiracy."
"The video that has never been seen is going to shock."
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As in most white-collar crime cases, experts said the biggest challenge for prosecutors would be proving that Trump had criminal intent, that he knew he had lost the election but went ahead with his fraud charges anyway.
It's clear that a president who once went so far as to suggest that people could inject themselves with disinfectant to avoid contracting Covid has adopted some strange ideas.
(He later said that he was being "sarcastic").
Trump has said that he genuinely believes the election was stolen from him and that all his statements and actions were done in good faith.
