Donald Trump must be indicted — and this time, I believe Merrick Garland will act

Following the final hearing of the congressional investigation into the Jan. 6, 2021, attack on the U.S. Capitol, the evidence is overwhelming: The Department of Justice must bring criminal charges against Donald Trump and many others for their culpability for the attack. The evidence of criminal conduct by the former president is so strong, and the offenses so consequential to the continued viability of American democracy, that indictment is the only appropriate outcome — and I believe the DOJ will indict.

The select committee's public hearings, which culminated Oct. 13, made clear how Trump and his allies planned and executed a conspiracy to overturn the will of the American people. The committee demonstrated that Trump and those around him knew he had lost the 2020 presidential election but nevertheless pushed false election fraud claims to justify their efforts to overturn the results. The committee explained how Trump and his allies illegally pressured Vice President Mike Pence to overturn the will of the people, illegally pressured and harassed Arizona and Georgia legislators and election workers to do the same, and pressured the Department of Justice to legitimize election fraud lies to create a false pretext for overturning the election.

The committee further demonstrated that Trump's allies were in touch with violent extremist groups to plan the "Stop the Steal" rally on the morning of Jan. 6, that Trump had clearly specified that date for mob action in a tweet — after a marathon meeting with lawyers made clear that other options to overturn the election were not promising — that Trump sent a mob he knew to be armed to the Capitol to stop the peaceful transfer of power, and that he anticipated, incited and encouraged the violence that occurred on Jan. 6.

While the question of whether to indict a former president yields few easy answers, there is only one that is just: Trump must face criminal charges for his efforts to defraud the American people of their right to elect a president.

Bringing federal charges in any case requires as a threshold matter that a prosecutor determine that the defendant's conduct constitutes a federal offense and that there is sufficient evidence to sustain a conviction. Thanks in part to the committee's work, we know there is overwhelming evidence that Trump participated in a conspiracy to defraud the United States and obstructed an official proceeding of Congress — just two of the offenses that federal prosecutors are likely considering. Charging Trump would also meet other requirements, including that it serve a substantial federal interest. Other relevant considerations would support charging Trump too: Few imaginable federal offenses could be more serious than a criminal conspiracy to unlawfully remain in power. Trump was at the center of the various efforts to remain in power, and he has fought the DOJ's efforts to investigate the Jan. 6 attacks.

The prosecution of a former president is clearly no standard criminal case. Attorney General Merrick Garland and his department may feel pressure to decline prosecution because of the likelihood that charging Trump would prove contentious and the possibility that doing so might exacerbate partisan political divisions, or even lead to violence. Those advocating for forbearance often cite Gerald Ford's pardon of Richard Nixon as a model that should inform the present.

That logic is misguided for three reasons:

First, Trump has yet to face any consequences for his criminal efforts to retain power against the will of the American people. After the Watergate investigations exposed Nixon's crimes, he resigned the presidency in disgrace and never sought public office again. Trump by contrast, is not in exile — he is emboldened. He remains the de facto leader of the Republican Party and is reportedly preparing to run for president again in 2024. Under Trump's leadership, the party has embraced, not renounced, the Jan. 6 attack: At least 291 Republican candidates running for Congress or statewide office this year have denied the legitimacy of the 2020 presidential election. The election denialism that Trump fomented and still propagates today will go unchecked if charges are declined.

Second, Trump is going to continue breaking the law until he is held accountable. Since he first ran for president in 2016, Trump has been credibly accused of at least 55 crimes. That record includes his attempts to obstruct the investigation of Russian interference in the 2016 election, his efforts to pressure Ukraine to open a sham investigation into Joe Biden in 2019 and his unauthorized possession of sensitive government records at Mar-a-Lago.

Finally, prosecuting Trump represents a critical opportunity to reaffirm that it is unacceptable to interfere with the peaceful transfer of power–a defining feature of American constitutional democracy. Ultimately, Garland understands this, as well as the strength of the evidence. That's why I believe he will act. The way to protect our democracy is to hold accountable those who sought to destroy it — including the former president.

We can stop the white-collar insurrectionists from doing it again -- here's how

With the anniversary of the Jan. 6 attacks now behind us, perhaps the most important question facing our nation is whether our systems of accountability are capable of punishing those who sought to overthrow our constitutional democracy — and preventing them from doing it again.

I am not talking about the people who stormed the U.S. Capitol building or assaulted police officers. Many of them already have faced, or soon will face, the justice they deserve. I'm talking about the people who tried, using legal theories, public and private pressure and official powers, to overturn an election — the powerful people who inspired the violent insurrectionists at the Capitol that day. We can call this group, which includes former President Donald Trump and his cadre of congressional enablers, "white-collar insurrectionists."

It's time for us to get serious about protecting our democracy from the people who sought to overturn the votes of the American people in a presidential election. Fortunately, the Constitution gives us a good way to do this.

Section 3 of the 14th Amendment offers us an opportunity to hold those who tried to steal the 2020 election and keep Trump in office accountable. Ratified in the immediate aftermath of the Civil War, Section 3 bars any official from holding elected office who, "having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

Some may argue that President Trump, Rep. Paul Gosar, Sen. Josh Hawley, Sen. Ted Cruz and others did not engage in insurrection or rebellion because they did not personally use violence to try to deny Joe Biden the presidency. But a close look at the text, history and function of Section 3 of the 14th Amendment makes clear that these white-collar insurrectionists should be banned from holding future office just as much as anyone who attacked the U.S. Capitol on Jan. 6, 2021.

Section 3 disqualifies an oath taker who has "engaged in insurrection or rebellion against the same" — meaning the Constitution — or has given "aid or comfort to the enemies thereof." It is noteworthy that the terms "insurrection and rebellion" are not used in the abstract; rather it is "insurrection or rebellion against the Constitution" that is disqualifying.

That phrasing matters. The Constitution is a set of rules establishing a democratic system of government that only endures because of our collective, mutual agreement to adhere to those rules. Insurrection against the Constitution cannot possibly be limited only to acts of violence. It must include efforts to undermine or undo the process by which it assigns power.

The history of the Civil War supports this view. While physical violence did not begin until April 1861 at Fort Sumter, the insurrection against the Constitution preceded it by several months. In response to Abraham Lincoln's election in November 1860, South Carolina seceded from the Union on Dec. 20, 1860. Over the next two months, six more states followed, and they collectively formed the Confederate States of America in February 1861. Their secession and creation of the Confederate States of America were just as much acts of insurrection or rebellion against the Constitution as the shots that were fired when the war came.

Applying the 14th Amendment to white-collar insurrectionists makes sense from a functional standpoint too. There is no reason to exalt physical threats to our government over existential legalistic ones. In both 1861 and 2021, the proto-legal attempts to undermine the Constitution served as the rallying cry and justification for subsequent acts of violence. The Civil War could not have happened without the refusal by Confederate States to acknowledge that Lincoln was their president-elect. Jan. 6, 2021, could not have happened without Trump and his congressional allies' refusal to acknowledge that Biden was the president-elect.

A white-collar insurrectionist is still an insurrectionist. In fact, the chasm between these insurrectionists and those who violently attacked the Capitol on Jan. 6 is minimal.One analysis found that the "demographic profile of the suspected Capitol rioters is different from that of past right-wing extremists," including a significant percentage of business owners and white-collar professionals. The fact that elected representatives exploited weaknesses in our election-result confirmation process, rather than weaknesses in the physical security of the Capitol, does not make their betrayal of our Constitution any less serious.

Section 3 of the 14th Amendment can and should be used to bar from future office anyone who engaged in insurrection against the Constitution after having sworn to defend it. This provision will not enforce itself. We need secretaries of state to preclude Donald Trump and other white-collar insurrectionists from appearing on a ballot. We need members of Congress to support resolutions finding their colleagues or other officials in violation of Section 3 of the 14th Amendment. We need to stop those who violated the most sacred principles of our Constitution from doing it again.

This is one of the few avenues we have left for preserving our Constitution from Trump and his supporters as they redouble their efforts to overturn our democracy. The former president is endorsing candidates for secretary of state and other positions who are promising to overturn election results. State legislatures controlled by Republicans have enacted laws making it easier to overturn the will of voters across America. Those efforts come on top of tactics that have long undermined American democracy, such as the gerrymandering of political districts and new restrictions on the freedom of Americans to vote.

Section 3 of the 14th Amendment is a valid constitutional mechanism by which we can hold Trump and his fellow white-collar insurrectionists accountable. If we fail to do so, we risk losing forever our system of government of, by and for the people.