Could Trump be charged over the US Capitol attack?

Could Trump be charged over the US Capitol attack?

The big question now is whether the select committee sends a criminal referral against Trump to the Federal Justice Department – ​​and whether Merrick Garland, as the head of that department, could soon become the first attorney general to bring criminal charges against a former president.

Based on the evidence so far, a potential indictment could take multiple forms.


One possible charge is “obstruction of an official proceeding”. In this case, the official proceeding was the January 6 certification itself, where Congress and the vice president are required, as a formality, to certify the votes of the Electoral College – the slate of electors who determine who will become president based on the popular votes of each state.

It’s clear there was an attempted plot to thwart the certification of Biden’s victory, but this offense would require department prosecutors to show that Trump was part of that plot and that he engaged in it corruptly.

But Trump could potentially argue that he genuinely believed election was rigged – despite the evidence showing everyone from his attorney general Bill Barr, to his daughter Ivanka Trump and his campaign manager Bill Stepien, didn’t agree with the theory.

Another potential charge is “conspiracy to defraud the United States” which would require prosecutors to prove collusion between two or more people. This charge primarily refers to cheating the government out of property or money, but it also can relate to interfering with or obstructing a government function through deception or dishonesty.


And then there’s the serious charge of “seditious conspiracy”, which is punishable by up to 20 years in prison. The Justice Department has already used this against members of right-wing militia groups such as the Proud Boys and the Oath Keepers, arguing they “directed” and “mobilised” the crowd and helped move people toward the foot of the Capitol by removing barriers.

In further damning evidence from UK documentary maker Nick Quested – who was embedded with the Proud Boys at the time – members of the group even assembled near the Capitol hours before Trump’s January 6 speech and appeared to perform reconnaissance for the attack.

But charging Trump for seditious conspiracy would require prosecutors to prove that he acted intentionally or knowingly to conspire with other parties to inflict violence to change the election results. In the absence of a written agreement or some other smoking gun, the challenge would be convincing a grand jury of his culpability or state of mind.

The January 6 hearings wouldn’t be the first time the select committee has argued that Trump’s actions amounted to a crime. Last march, conservative lawyer John Eastman – the same man who spearheaded the failed plot for Pence to stop the vote count – tried to claim attorney-client privilege over thousands of emails the committee wanted. But the presiding judge sided with the committee, ruling that Trump and Eastman “likely” entered into a criminal conspiracy to obstruct Congress.

A video exhibit showing former President Donald Trump plays as the House select committee investigating the Jan.  6 attacks

A video exhibit showing former President Donald Trump plays as the House select committee investigating the Jan. 6 attacks Credit:PA

Whether this is enough to sway Garland to initiate charges against Trump is another thing altogether. For now, he has simply said that he will hold “hold all perpetrators who are criminally responsible for January 6 accountable – regardless of their level, their position and regardless of whether they were present at the events on January 6”.

And to some extent he has, charging more than 800 people so far with crimes related to the riot. Whether he indicts Trump – or anyone in Trump’s immediate orbit – will soon become clear. In the meantime, the hearings continue.

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