How the DOJ could prosecute Trump for Jan. 6
Donald Trump (Photo: Gage Skidmore/Flickr)

Attorney General Merrick Garland spoke to the press on Wednesday about the guilty verdict the jury delivered in the Oath Keepers sedition trial. It was something that law professor and former federal prosecutor Barbara McQuade explained could use to garner further information about the link to the White House.

There is a general fear that the Justice Department won't be able to get anyone to flip on Donald Trump and give details about his urging to use violence to overthrow the American government. Stephen Miller was before the grand jury investigating the Jan. 6 this week and they might be able to garner information to legitimize different charges.

"Two reasons," McQuade began. "One is the crime of seditious conspiracy or something else relating to the physical attack, but I think a more likely charge they may be proving is conspiracy to defraud the United States. That would not require Donald Trump to be connected to the actual violence at the Capitol. It would be enough to show he was pressuring Mike Pence to get him to subvert the election laws."

Trump was leaning hard on Pence, in an ongoing pressure campaign to get the vice president to refuse to certify the election. Pence was told over and over by those he asked that his role was nothing more than to count the votes and certify them. Fringe legal advisers came up with the idea that Pence could subvert the requirements and send the vote back to the state legislatures because there was enough evidence to prove fraud was afoot.

"That's where Stephen Miller may come in handy, John Eastman and some of the other people who were part of this strategy to solicit fake electors, to create this false claim of fraud to get Mike Pence to be able to reject the certification that day and buy some time for state legislatures to throw out the votes of their people, and install their own slates of electors," McQuade said, describing the plot. "That would be a path to victory for Donald Trump. That's one they have shown and one Stephen Miller can lend some support. The same with Mike Pence, which is why the DOJ is persuing his testimony as well."

She went on to cite the term "stochastic terrorism," which is when a person or a group is demonized in a way that inspires violence. While the context was a discussion about the uptick in hate crimes, it could be applied to the radical right-wing extremism on the rise in the U.S. The FBI and the DOJ have the option to prosecute such crimes, but they've been reluctant to after the FBI was attacked for targeting civil rights movement leaders in the 1960s. It takes political courage, McQuade said, to go after people whose violence can be tied back to statements from leaders, but it can be done.

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How to charge Donald Trump