December 3, 2023


A Washington jury put down a marker that could protect generations of future elections by finding four Proud Boys extremists guilty of the seditious conspiracy of trying to violently thwart the transfer of presidential power.

But what about the next election?

Thursday’s verdict only added to the intrigue surrounding the gravest legal and political unknown from the 2021 Capitol insurrection that hangs over the 2024 campaign: will Donald Trump, the president who inspired the uprising, face his own legal and political price?

This is not simply vital to the question of whether justice applies equally to everyone in society, no matter how powerful they might be. It’s also fundamental to the historical accounting still unfolding over one of the most flagrant attacks on American democracy and may go some way to undermining Republican efforts to blur the truth of what happened on that terrible day.

But the legal uncertainty facing Trump – who appears in jeopardy in multiple investigations springing from his election denialism and other alleged transgressions – comes with a related political question. Even if the ex-president is charged with trying to overthrow the core principle of democracy – the peaceful transfer of power – will it ultimately hurt his 2024 campaign?

The former president is betting that it won’t. He’s spent two years denying the truth of January 6 and has anchored his 2024 campaign for a non-consecutive second term to the premise that he was illegally ousted from power in 2020. If the nascent Republican nominating contest is any guide, Trump’s legacy of disgrace is unlikely to scare off Republican primary voters, many of whom seem to be warming to him after his slow start. And that’s despite his indictment in a hush money case in New York. (He’s pleaded not guilty to charges of falsifying business records.)

President Joe Biden, however, has made a counter bet. The first scene of his reelection announcement video released last month showed smoke rising over the US Capitol and rioters with Trump flags. Whatever the liabilities of his own bid, including his advanced age, low approval ratings and an unpredictable economy, the current commander in chief is beseeching Americans not to trust their democracy to a predecessor who came close to overturning it in early 2021.

Given the fraught situation, the Justice Department’s next moves will be hugely significant.

“Today’s verdict makes clear the Justice Department will do everything in its power to defend the American people and American democracy,” Attorney General Merrick Garland said after prosecutors secured convictions against the Proud Boys extremists in a historic case Thursday.

But Garland walked away from the cameras and didn’t take a question – presumably because he’s not yet ready to answer the one that is on the nation’s lips, about Trump.

In cases directly related to the 2020 election, the former president is being investigated by special counsel Jack Smith over his actions running up to the insurrection. He’s also waiting to find out whether he and his political cronies will be charged in an investigation in Fulton County, Georgia, over his attempt to steal Biden’s victory in the Peach State.

Thursday’s Proud Boys convictions are among the most significant of hundreds of successful Justice Department prosecutions of people linked to the US Capitol riot. Five leaders and one associate of another extremist group – the Oath Keepers – were earlier found guilty of seditious conspiracy in separate cases. All of those convicted potentially face decades in jail. Nearly 600 rioters have been convicted and more than 235 have been sent to prison on lesser charges.

This record bolsters Garland’s promise that the assault on US democracy would be punished. But it also begs the question why Trump, who inspired the rioters and has convinced millions of his supporters that he actually won an election he lost, has not faced similar accountability.

“Who is the single most powerful person who Merrick Garland has charged in connection with January 6? Nobody,” said CNN legal analyst Elie Honig on Thursday, channeling frustration among some experts with the slow pace of investigations into Trump and his associates.

So could the ex-president – who called a crowd to Washington on the day that the 2020 election was due to be certified in Congress, fired supporters up with lies about election fraud and told them to “fight like hell” before they marched on the Capitol – also be charged? And since prosecutors referred to the Proud Boys convicted on Thursday as “Trump’s army” and said that they appeared to see him as their leader and his rhetoric as a call to action, could he also be looking at a charge as serious as seditious conspiracy?

“Donald Trump lit the flame. The Proud Boys were the flame,” former Rep. Adam Kinzinger, an Illinois Republican, told CNN’s Wolf Blitzer on “The Situation Room.”

Seditious conspiracy, a charge that dates from the post-Civil War period, is rarely used and hard to prove. Prosecutors effectively had to show that two or more people had conspired to overthrow, put down or destroy by force the US government. They used a trove of text messages, video and other material to build the chain of conspiracy that convinced the jury.

Using the same charge against Trump would be complicated unless the special counsel has amassed evidence that shows that the ex-president genuinely plotted with others to incite violence against the government when his vice president was inside the Capitol presiding over the certification of Biden’s victory. It won’t be enough to simply draw a line between Trump’s apparent incitement of the crowd to events that happened next.

“The challenge whenever you are establishing a conspiracy is you have to have an agreement between two parties,” CNN legal analyst Elliot Williams said. “Finding an agreement between the former president and the people who were there on that day is just going to be exceptionally difficult.”

Still, the defendants found guilty of seditious conspiracy on Thursday – longtime Proud Boys chairman Enrique Tarrio, Ethan Nordean, Joseph Biggs and Zachary Rehl – were also found guilty of a range of other charges, including three separate conspiracy charges, obstructing the Electoral College vote and tampering with evidence. So while a prosecution of Trump and his closest political associates over January 6 could be tough, it may not be impossible. In fact, Tarrio was not even on the Capitol grounds when the insurrection took place – a fact that could chill those in Trump’s camp.

A lawyer for Rehl told CNN’s Katelyn Polantz after the verdict that what Trump did or didn’t do was of “no moment” to her or her client. She added, however: “But he was the one who called the rally and had everyone show up.”

Any legal moves will take place in a highly sensitive political context. After all, the next election is unfolding while a former president and current presidential candidate is being investigated over alleged crimes by the Justice Department of his successor’s administration.

The lesson of the ex-president’s career in business and politics is that he’s an expert at avoiding legal accountability and that scandals – any one of which would have ended a normal political career – seem to wash off his back.

It’s fair to ask, however, whether that is now changing because his potential legal liability goes beyond cases related to the 2020 election.

Smith is also pursuing a possible case of infringing the Espionage Act and obstruction in an investigation over classified documents Trump hoarded at Mar-a-Lago. In a possible sign of his increasing vulnerability on this matter, two Trump Organization executives were due to appear before a federal grand jury investigating the case Thursday, after CNN exclusively reported Smith is asking questions about the handling of surveillance footage from the Florida resort. And in another extraordinary drama that reflects the staggering legal clouds hanging over Trump – but that might also end up demonstrating the extent of his political impunity among his voters – a jury in a civil case is being asked to decide whether Trump raped former magazine columnist E. Jean Carroll in the mid 1990s and then defamed her. (Trump has denied all wrongdoing.)

Both Biden and some of Trump’s potential 2024 primary opponents, including Florida Gov. Ron DeSantis, have made the case overtly or implicitly that this catalog of suspicion – not to mention the chaos it could cause during the campaign and potentially in a second Trump term – is more than enough to disqualify him from the presidency. And after his loss in 2020 and the defeat of many of his hand-picked candidates in last fall’s midterms, there’s reason to believe a national electorate could again reject the former president because of his conduct, character and his ongoing obsession with the last presidential election.

It’s a different story among the GOP base, which is still loyal to him. In an NBC News poll released last week, 68% of Republican primary voters agreed with the statement that investigations against him “are a politically motivated attempt to stop Trump. No other candidate is like him, we must support him.”

The ex-president, who will appear in a CNN town hall in New Hampshire on Wednesday, has made some effective moves in seeking to wound DeSantis, his former protégé, who trails him in early polling. There’s plenty of time for the race to change – and for DeSantis, who hasn’t yet launched a bid, to overcome some rocky moments in recent weeks. But the ex-president’s team looks to be running a more disciplined operation than his chaotic White House often did.

Trump’s demagogic and anti-democratic rhetoric at his campaign rallies, however, refutes any notion that he would be less threatening to American democracy in a second term.

But that’s a direct appeal to his followers. So for now, at least with GOP primary voters, what doesn’t convict Trump, makes him stronger.


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