Despite his "outrageous" and "reprehensible" efforts to overturn the results of the 2020 election, a federal criminal prosecution of president Donald Trump is — based on current evidence — unlikely to be successful, according to one legal expert.
Renato Mariotti, a former federal prosecutor and legal affairs columnist for Politico, writes Tuesday that he does not believe the Department of Justice should bring charges against Trump because a not guilty verdict could do lasting harm.
Noting that his position is unlikely to be popular, Mariotti writes: "The precedent Trump set is dangerous and disturbing, resulting in a violent attack on the U.S. Capitol and persistent bad-faith attempts by his supporters to overturn the result. It's unsurprising that Congress is investigating this matter. But the evidence of Trump's behavior available to us now—and I emphasize now—does not merit criminal prosecution. That's not because Trump's actions were not reprehensible—they were—but rather because what we know he did does not fit neatly within the four corners of federal criminal statutes."
Mariotti runs down several potential federal charges against Trump, including alleged violations of the Hatch Act or the Racketeer Influenced and Corrupt Organizations Act ("RICO"), as well as inciting violence and extorting Georgia's secretary of state. However, he says each of these would represent a "first of its kind" case that comes with challenges and risks "because there is no existing legal precedent to guide prosecutors."
"Prosecutors aren't supposed to charge cases that they aren't sure they can prove, and there is a grave risk in prosecuting the immediate past president of the United States and failing to convict him," Mariotti writes. "It could set a precedent that Trump's actions were permissible or at least impossible to prosecute and would bolster Trump's claim that he is politically persecuted."
Although federal charges may be unlikely, Mariotti says he believes a full criminal investigation is warranted, but he cautions people against getting their hopes up about the outcome — in part because some evidence may never become public due to grand jury secrecy rules.
"For that reason, Congress must aggressively investigate these matters and make the evidence they find public, so that lawmakers can craft new laws to ensure that Trump's wrongdoing is never repeated and is swiftly punished if it ever occurs again," he writes.