Longtime federal prosecutor says the evidence is 'conclusive' — but Trump may not end up in jail

Over the course of nine public hearings the House Jan. 6 committee has conclusively shown that Donald Trump tried to end American democracy by nullifying the results of the 2020 election. In an exclamation mark to that conclusion, the House committee has now subpoenaed Trump. It's unlikely, of course, that Trump will supply the evidence the committee demands or appear to testify.

Trump's coup plot was complex and multifaceted. Its tentacles included numerous Republican officials, right-wing paramilitaries, media propagandists, private funders, interest groups, think tanks, and other agents. As was confirmed during last Thursday's committee hearing (presumably its last), the FBI, the Department of Homeland Security, the Secret Service and other law enforcement and national security agencies were aware that some of Trump's followers were armed and were coming to Washington with violent intentions on Jan. 6. Even worse, the evidence suggests that some individuals at the highest levels of the federal government either actively aided Trump's coup attempt or did nothing to prevent it.

Jan. 6 was not the climax of Trump and the Republican fascists' campaign to subvert the Constitution, demolish the rule of law and overthrow democracy. That day was just one more chapter in Trump's lawlessness and contempt for democracy. Trump's presidency was itself an extension of a much larger pattern: Throughout his decades of public life, he has behaved like a crime boss with no respect for anything or anyone beyond his own narrow self-interest and his bottomless hunger for power and wealth.

Ultimately, the Jan. 6 insurrection was just the beginning. Donald Trump and the Republicans' assault on democracy is only escalating as the midterms approach and the future of the country hangs on the precipice. What happens next? What are Attorney General Merrick Garland and the Department of Justice waiting for? What does justice look like? Will Donald Trump and the other coup plotters ever be prosecuted and punished?

Glenn Kirschner is a legal analyst for NBC News and MSNBC who teaches criminal law at George Washington University. For most of his 30-year career in law enforcement, Kirschner was an assistant U.S. attorney in Washington, D.C., often prosecuting serious crimes in federal court, and before that was a prosecutor and appellate attorney in the U.S. Army.

In this conversation, Kirschner describes Donald Trump as a "ruling-class criminal" who serves as living proof of how the rich and the powerful often evade justice in America. Trump's contempt for the rule of law is understandable, since he has never been held properly accountable for his lawbreaking. This time, Kirschner says, Trump may finally gone too far.

The House Jan. 6 committee hearings, Kirschner suggests, have provided a roadmap for prosecuting Donald Trump for such serious crimes as seditious conspiracy and attempting to defraud the United States. Kirschner believes the evidence is overwhelming and clear, and that it will not be difficult to convince a jury to convict Donald Trump. That does not mean, Kirschner cautions, that Trump is likely to serve time in prison.

The Department of Justice may approach Trump's prosecution, Kirschner says, as a series of overlapping conspiracies rather than as the kind of comprehensive RICO case used against organized crime and other complex criminal organizations.

Toward the end of this conversation, Kirschner warns that it's likely Trump's followers will follow through on his commands to commit acts of violence if he is prosecuted or convicted — but says that most of Trump's MAGA followers are cowards and that any potential violence will be limited in scope.

How are you feeling? As a human being, how are you managing this democracy crisis and the troubled state of our country?

I feel schizophrenic, because one moment I am extremely frustrated and then the next moment I find some reason for hope and optimism. But as a whole I have been trying to balance the need for patience in any large-scale criminal investigation with the frustration that I feel.

Part of my daily work when I was a prosecutor involved assessing whether there was probable cause to support the application for an arrest warrant or an indictment. We had many long-term investigations that started out covert, they were proactive. By comparison, a reactive investigation is when an arrest is made, and we begin presenting evidence and information and seek an indictment. That is the stock in trade of state, local and county prosecutors as opposed to federal prosecutors.

Federal prosecutors mostly do proactive investigations where there is adequate predication and then we start in a very leisurely way. We want the case to be perfect. That's always the goal of the federal prosecutor. When federal prosecutors decide to return an indictment, they have likely already negotiated a pre-indictment plea, so it's already wrapped up in a pretty little bow and dropped on the court docket such that the Department of Justice is never operating under deadlines. We didn't have a sense of urgency. I often found that problematic. Every day, particularly when I was chief of homicide, we were investigating murders, conspiracies and obstruction cases.

Once we had probable cause to make an arrest, to indict somebody, I had to assess whether the right thing to do was to continue to investigate proactively, meaning covertly, without making an arrest, or to move forward to an arrest, a takedown and an indictment. The biggest factor in that decision was public safety.

The fact that Donald Trump is not being held accountable doesn't make sense. But it can be explained by the phenomenon of the ruling-class criminal. America has never been willing to hold them accountable.

How does that translate to the investigation of a former president? They're very different investigations in very different circumstances, of course. But I maintain that public safety writ large — for example, the viability of our democracy — should be an enormous factor in when the Department of Justice chooses to move toward an indictment of Donald Trump. Public safety is at risk. Our democracy hangs in the balance.

We are prosecuting Donald Trump's foot soldiers who he unleashed upon the Capitol on Jan. 6 to stop the certification. They are going to trial; they're going to prison. The man who gave the criminal order to attack is playing golf, holding rallies and attending dinner parties. That is a deep injustice at play in America every minute of every day, until Donald Trump is held accountable.

As a working-class black man in America, I know that if I did one-millionth of what Trump is alleged to have done, never mind what is obvious, I would be in prison long ago. The fact that Trump is not in jail facilitates and nurtures this democracy crisis, and feeds the anger that there is one set of rules for the rich and powerful and another one for everybody else. What are Merrick Garland and the Department of Justice and the others investigating Trump waiting for?

Don't ask me to explain the inexplicable, because I can't. Every single jury I spoke with, I warned them that they should not try to make sense of murder or other crimes. Because if you're waiting for it to make sense, or you require it to make sense in order to vote guilty, nobody would ever be convicted. The fact that Donald Trump is not being held accountable doesn't make sense. But it can be explained by the phenomenon of the ruling-class criminal. America has never been willing to hold the ruling-class criminals accountable, whether they are in politics, business, entertainment, the tech business or what have you.

Donald Trump is publicly admitting, for all intents and purposes, that he violated the Espionage Act and committed other high crimes. He is trying to extort the DOJ and Garland with threats of violence. He brags about financially supporting his followers who attacked the Capitol. He shows no fear of being prosecuted or being punished in any way for his obvious crimes. Does he want to go to jail? Or does he simply believe that he is above the law?

Donald Trump believes that he is above the law. And he holds that belief for good reason. It appears that Trump has lived a life of crime and has never been held accountable. That is a dramatic failing of our criminal justice system, our law enforcement agencies and most certainly our nation's prosecutors. Trump, in my opinion, has also come to believe, with good reason, that if he admits his crimes out loud people will take a step back and scratch their heads and say, "Geez, I thought it was criminal what he did, but he is saying he did it. So I'm uncomfortable, because that's not the way we go about investigating and prosecuting crimes in America. Something is wrong here. I don't know what it is, but we have to figure it out." In reality, what we as a society need to do is to focus on why Trump and other such people are not being prosecuted.

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I would take that 14-page statement that he issued last week in response to the House Jan. 6 committee subpoena and slap a government exhibit sticker on it. I would then hand it to the jury as sharply self-incriminating evidence of Donald Trump's admission of guilt. This is what has me so unbelievably frustrated and angry. The prosecutors, on both the state and federal level, have all been reluctant, hesitant and maybe even afraid to be the first to charge Donald Trump with committing crimes. No prosecutor wants to be the first to charge a former president who committed crimes. However, everybody will want to be the second to do so. Once that barrier is broken, and the white-hot glare of world media attention is focused on the first prosecutor and his or her office, then everybody's going to want to get into the prosecuting Donald Trump business.

What crimes do you believe Donald Trump has committed? Which would you focus on?

I believe I've seen proof beyond a reasonable doubt in the public reporting, assuming it to be accurate. Moreover, I am 100% confident that the evidence of criminal conduct that we've seen publicly reported or shared with us in the Jan. 6 committee public hearings is about one-tenth of what the Department of Justice has by way of incriminating information.

Certainly, I see a conspiracy to commit offenses against or to defraud the United States. Judge David Carter in California ruled that there was a preponderance of evidence to conclude that Donald Trump committed that crime in a conspiracy with John Eastman. He also concluded that Donald Trump committed a second federal felony, obstructing an official proceeding.

No prosecutor wants to be the first to charge a former president who committed crimes. However, once that barrier is broken, everybody will want to be the second to do so.

I also see evidence of inciting an insurrection or rebellion. Trump gathered together his angry supporters, he promised them a wild time and told them that their vote had been stolen. In total, that is compelling evidence of Donald Trump's criminal intent. Now, what sealed the deal for me was when we learned that Donald Trump told his own DOJ officials that he didn't care if there was no voting fraud and that they should just say that there was and then "leave the rest up to me and the Republican members of Congress."

To my eyes that is conclusive evidence of criminal intent, corrupt intent, guilty mens rea [knowledge of wrongdoing]. We can prove that in our sleep, in my estimation. Trump lied to people with the goal of inspiring them to anger. Then you tell them, "If you don't fight like hell, you're not going to have a country anymore. Go to the Capitol and stop the steal." That is more evidence of Trump's corrupt intent, because he continued to lie to them right up to the moment before they marched on the Capitol. Trump told them directly to go down there and stop the lawful functions of government — and Trump's followers did it. That is inciting an insurrection or rebellion. If we can ever get a prosecutor to plant his or her feet in the well of a court and present this to 12 jurors, they are going to convict Trump very quickly. This is a stronger case than the vast majority of cases I tried in 30 years.

What do you make of Trump's response to the subpoena from the House Jan. 6 committee?

Trump's response to the subpoena, which was a 14-page missive, was really a non-response. He didn't mention the subpoena. He didn't acknowledge it. Trump did not say he would or would not comply, or that he would defy it and file suit. He said nothing about it. Trump began by saying that the election was fraudulent and stolen. That's an admission of guilt. Why? Because his own DOJ officials, his own DHS officials, his own attorney general, all said there was no fraud undermining the election result. In fact, they said it was the safest, most secure election ever. His own staff said that too.

Trump continues to lie. That is evidence of an ongoing 371 conspiracy to defraud the United States. Of course, Trump will defy the subpoena. He will probably file suit and try to run out the clock and he will probably succeed, given how little time the select committee has left. In the end, the subpoena will get stuck in the courts and it will die.

I am concerned that Trump's influence is so great that it will be very difficult to find a fair and impartial jury. Even worse, Trump's followers will try to get on the jury to sabotage the result so that he can escape accountability. If Trump is tried and not convicted, for whatever reason, he may end up becoming even more powerful and dangerous.

Of course those are reasonable concerns. But none of that is a reason not to indict and try somebody for the crimes they committed.

A politician who contemplates offenses against the United States will know that Donald Trump was indicted, he went to trial and it took up two or three years of his life, burning through every penny he might have.

I spent decades trying cases before D.C. juries, and they're not monolithic, but there are certain similarities that I saw. They like their proof beyond a reasonable doubt. But once you give it to them, they're not easily distracted or confused by chaff that may be thrown into the mix by defense attorneys. Also, in my experience D.C. juries tend to take their oath of jury service seriously and decide the case based solely on the evidence, not on politics, ideology, preconceived notions or media accounts that they may have been exposed to before becoming jurors. I have complete confidence, actually, that if you give 12 citizens of the District of Columbia enough evidence to convict, they're going to convict based on the evidence.

Again, I believe the evidence is overwhelming of Donald Trump's guilt. Indicting and trying somebody for serious criminal offenses in and of itself has a powerful deterrent effect, whatever the outcome may be. A politician who is contemplating committing offenses against the United States will know that Donald Trump was indicted, he went to trial and it took up two or three years of his life to burn through every penny he might still have. Even if the jury could not come to a unanimous decision — he's not going to be acquitted, I am almost certain of that — guess what? The benefit of a hung jury is that Donald Trump can be put on trial again. It has to be done. The results are almost secondary. I always told my homicide prosecutors that it is far more important to try cases than to win cases.

I have consistently described Trump as a political crime boss. Would you apply that framework for prosecuting Trump as the leader of a criminal conspiracy under the RICO laws?

First of all, I never want to bring a case that I make more difficult for myself than it has to be. You can bring a conspiracy case. That is a much easier prosecution for what Donald Trump did, in connection with the insurrection, than trying to build a RICO conspiracy. For the latter, you would have to prove there's an organization or an enterprise. You have to prove there's a pattern of racketeering activity. You have to generally show that there were people who fulfill the established roles in the hierarchy of the organization. That having been said, do I see a RICO case in Donald Trump? Yes. I think the Trump Organization was run as a criminal enterprise. That's a RICO organization. One can see Donald Trump's administration as a potential RICO case.

To that point, I see his Cabinet secretaries as having been involved in questionable conduct. Trump's cabinet was literally structured with the kind of hierarchy we would see in a RICO organization. With respect to the insurrection and everything that led up to it and has come after it, I see that much more as a hub-and-spoke conspiracy. Donald Trump is the hub and there are these spokes, the people radiating out from the center. They do not necessarily intersect with each other, but they are all connected to the central person, the mob boss, the kingpin, the one for whose benefit they're committing these crimes — in this example, to try to keep Trump in office unlawfully and unconstitutionally.

There are all these people, every single day on social media and elsewhere, who proclaim, "Donald Trump is going to jail! He will do a perp walk!" To my eyes that borders on the ridiculous. What do you think is going to happen? Is Trump going to jail?

I believe that Donald Trump will be indicted and arrested. It will probably be a negotiated turn in which means that we will not see a perp walk. Trump will go to trial. He is a deeply damaged human being who does not have the capacity to admit guilt. Therefore, Trump goes to trial and gets convicted of his alleged crimes. I believe that the charges will be for a series of different conspiracies. There may be one for the Espionage Act and the document cases involving Mar-a-Lago. There may be another charge for the insurrection. Trump will be convicted. I am almost certain of that outcome.

Will Donald Trump go to prison? My instincts tell me no, because I don't think we have the courage in this country to put a former president in prison. If Trump does not go to prison and is instead sentenced to home confinement, that will be an enormous failing of our government. My position on home confinement has always been that is sentencing somebody to watch movies and TV and order food. That's no kind of punishment. Donald Trump needs to be put in prison, not only to punish him for crimes against the United States, but to deter the next aspiring political criminal or dictator or other killer of our democracy.

Does this all end with a whimper or a bang? Will Donald Trump unleash violence across the country by his followers if he is indicted or convicted?

I don't think we have the courage to put a former president in prison. If Trump does not go to prison and is instead sentenced to home confinement, that will be an enormous failing of our government.

Trump goes out with what he hopes is a bang, but in the end it will be a whimper. His supporters are not strong people. Many of them are not critical thinkers. Many of them only feel strong when they have guns, big automatic weapons, across their bellies and prance around with them. That is not a strong person. That's not the kind of person who's going to take up arms because Donald Trump has been indicted. Instead, that's the kind of person who is going to look for the next false God to worship, such as Ron DeSantis or whoever else it might be.

Trump is going to call for violence, but it will fizzle out because his followers will not rise up. There might be small pockets of violence, but the reality is that we have small pockets of violence across the country in major cities every day. In the end, I don't think there will be any more violence inspired by Donald Trump's arrest than, unfortunately, we suffer in every city and every county in every town across America every damn day.

If you had Merrick Garland's ear right now, what would you tell him?

He is a good, honorable, honest and ethical man. If I could be so bold as to offer him any thoughts, I would say the nation is suffering. The American people are desperate, anxious, depressed, angry and upset. They don't understand why somebody who has committed crimes in the harsh light of day, and then not only admitted to them but bragged about them, is free to play golf every day. That is such a deep injustice. It is doing enormous damage to the legitimacy of the Department of Justice, an institution I respect and love.

On the one hand, you want to say better late than never if you're going to bring charges against Donald Trump. But it's already so late. People have lost so much confidence. You came in as somebody who was determined to rebuild the institution, the prestige and the legitimacy of the Department of Justice. But I think the way this investigation is lingering is doing the exact opposite. I hope he can make decisions quickly that will remedy all of that.