Should Donald Trump be prosecuted for his efforts to overturn the results of the 2020 US presidential election?
The question hangs over Washington after the series of hearings of the House of Representatives committee that investigated the storming the capitol American on January 6, 2021 that left five dead.
The response, furthermore, is of an urgent nature given that Trump, 76, has hinted at wanting to run for the White House again in 2024.
The decision essentially rests with Attorney General Merrick Garland.
Here’s a look at the potential charges — and political fallout — Garland will have to weigh if he decides to impeach Trump:
The potential charges
During eight televised public hearings, the House of Representatives committee laid out a roadmap to potentially be followed by the Justice Department:
Trump knew he had lost the election – his advisers told him so and his legal moves were going nowhere – but he continued to insist that Democrat Joe Biden “stole” his victory.
Trump pressured election officials in Georgia to “find” the votes he needed to win and tried to force then-Vice President Mike Pence not to certify the election results at the congressional ceremony, the January 6, 2021.
Trump summoned his supporters to Washington and invited them to “fight with everything” in a fiery speech near the White House.
Then, he sat back for three hours and watched on television as his loyal supporters violently attacked Capitol Hill in an attempt to block the certification of Biden’s victories.
Legal analysts say Trump could face at least two charges: “conspiracy to defraud the United States” for seeking to nullify the election results, and “obstruction of official proceedings” for the attack on Capitol Hill.
That last charge is the one that has been charged the most against hundreds of Trump supporters who were arrested for breaking into the Congress hall.
The political consequences
In addition to the legal effects, an unprecedented process against a former president would possibly cause a political earthquake in a country that is already brutally polarized between Democrats and Republicans.
“Indicting a past and perhaps future adversary of the current president would be a cataclysm from which the nation would not soon recover,” says Jack Goldsmith, who was an assistant attorney general in the George W. Bush administration.
“It would be seen by many as political retaliation,” says Goldsmith in a column for the newspaper The New York Times, and adds that it would threaten to “ignite even more the already burning partisan acrimony”.
Other legal scholars argue that not impeaching Trump would be equally damaging.
“I admit that impeaching a former president would generate a lot of social heat, perhaps violence,” said Harvard law professor Laurence Tribe. “But not charging him would invite another violent insurrection.”
Rich Lowry, editor of the conservative publication National Review said the prosecution would be “a catastrophic setback” and “could even give Trump a political boost.”
the attorney general
Prosecutor Garland has been frequently asked about his intentions but avoided giving clues.
He recently said that the investigation of the January 6 is the “most important” that the Department of Justice has had and that it should “do the right thing.”
“We must hold accountable every person responsible for crimes for trying to overturn a legitimate election,” Garland said. “No one is above the law.”
A former prosecutor and judge, Garlan, 69, was appointed attorney general by Biden after he was denied a Supreme Court seat in 2016 by a then Republican-controlled Senate.
Garland has a reputation for being cautious and scrupulously fair, even leading to speculation that he could appoint a special prosecutor for the Trump case to avoid any hint of a conflict of interest.
Tribe, who was Garland’s professor at Harvard, said he believed the attorney general will finally indict Trump.
“He said he would go all the way if the evidence pointed to it, and that’s exactly where he’s headed now,” Tribe told CNN. “I think most likely he will be charged”
– Trump’s defense –
Trump, who was impeached by the House for the Jan. 6 insurrection and later acquitted by the Senate, has spent weeks railing against what he calls a partisan “Kangaroo Court.”
Trump in June accused the committee of “make a mockery of justice”.
“They have refused to allow their political opponents to participate in this process, and have excluded all exculpatory witnesses, and anyone who readily points out the flaws in their account,” he said.
“The Democrats have created the narrative of January 6 to distract from a much larger and more important truth: that the election was rigged and stolen,” he charged.
William Banks, a Syracuse University law professor, says that prosecutors must prove not only that Trump was “guilty beyond a reasonable doubt, but had an intention to violate the law.
“Not only did he obstruct parliamentary procedure by making it virtually impossible to count the votes and certify the election, but he was trying to do just that,” Banks explains.
Trump’s lawyers, says Banks, could refute the accusations by presenting their client as “a patriot who really believed that the election had been stolen from him and was trying to save the country.”