Liz Cheney’s powerful remarks at Thursday night’s Jan. 6 congressional hearing on the insurrection at the U.S. Capitol — which sounded a lot like a lawyer’s opening statement at a criminal trial — have renewed a debate in legal circles about whether the Justice Department could and should prosecute Donald Trump.
With a growing body of evidence that Cheney and others say points to criminal acts involving Trump’s efforts to overturn the 2020 election, Attorney General Merrick Garland may ultimately be faced with an excruciatingly difficult decision about whether prosecuting a former president is in the national interest.
A person familiar with the matter told NBC News there have been conversations inside the Justice Department about the far-reaching implications of pursuing a case against the former president, should it come to that. So far, no public evidence has surfaced that Trump has become a criminal target.
“We will follow the facts wherever they lead,” Garland said in his speech at Harvard University’s commencement ceremony last month. His deputy, Lisa Monaco, has confirmed that prosecutors were looking into the legal implications for those who took part in schemes to push slates of fake Electoral College certifications declaring Trump the winner of states Joe Biden won.
Filing criminal charges against Trump in connection with his efforts to overturn the election “will very likely spark civil unrest, and maybe even civil war,” said Barbara McQuade, an NBC legal analyst and a former U.S. attorney.
“I think not charging is even worse, because not charging means you failed to hold someone criminally accountable who tried to subvert our democracy.”
Either way, “It’s a momentous and unprecedented decision — not as easy as some folks might imagine it to be,” said Chuck Rosenberg, an NBC News legal analyst who is a former federal prosecutor and former head of the Drug Enforcement Administration.