Recent blockbuster reporting revealed that former President Donald Trump was aggressively pushing Justice Department officials to help him overturn the results of the 2020 presidential election.
To those of us who previously worked at the Justice Department, this is … unfathomable.
The good news is that these revelations have inspired swift governmental action in at least some quarters. For example, the Justice Department inspector general’s office promptly announced an investigation of Trump’s pressure campaign. The Senate Judiciary Committee hastily assembled a hearing and spent seven hours — on a Saturday in August — interviewing Trump-era acting Attorney General Jeffrey Rosen about what he knew and when he knew it.
Still, the burning question on the minds of many remains: Is the Justice Department conducting a criminal investigation of Trump for his attempt to unlawfully retain power by seeking to corruptly overturn President Joe Biden’s win? Although we don’t yet have any reporting answering that question, given my three decades of experience as a federal prosecutor, I firmly believe the answer is “yes.”
We have long known that Trump was disputing the results of the presidential election. Indeed, even before Election Day, Trump was complaining incessantly about how the only way he could lose was if the election were “rigged” against him. Many saw this as Trump’s transparent attempt to soften the ground for his inevitable attack on the election results in the event he lost.
Then, he lost. Historically. And, as we all know, he didn’t take it all that well. Trump first sent his team of third-rate lawyers into courts around the country spewing unsupported — indeed, unsupportable — claims of voter fraud. Judges uniformly ruled against and dismissed these spurious accusations.
When court challenges hit a dead end, Trump tried another tack: He told some of his Justice Department officials to just say the election was corrupt and leave the rest to him and his Republican allies in Congress.
When all other efforts failed, Trump gathered his supporters in Washington on Jan. 6, whipped them up into a frenzy with inflammatory allegations of a stolen election and launched them in the direction of the U.S. Capitol with express orders to “stop” what was going on up there. He falsely labeled it a “steal,” but the reality is that the president of the United States told an angry mob to go to the Capitol and stop the certification of his opponent’s election win. That is a textbook example of inciting an insurrection or a rebellion.
We now know that after Trump told his Justice Department officials to lie and say the election was corrupt, at least one official took him up on it. Jeffrey Clark, then the acting chief of the Justice Department’s Civil Division, wrote and circulated a letter making ominous — and unsupportable — claims of election fraud and giving Georgia and other states a road map to invalidate Biden’s win, notwithstanding the popular vote.
I sleep well at night, secure in the bedrock belief that my friends and former colleagues at the Justice Department are, indeed, criminally investigating these matters.
And this revelation inspired the rare seven-hour, in-the-heat-of-August Saturday session of the Senate Judiciary Committee to take the testimony of Rosen about the former president’s pressure campaign.
Although the revelations about what appears to have been a conspiratorial alliance between Trump and Clark (more on that momentarily) seem to have quickened the investigative pace in Congress, we don’t yet know whether the Justice Department is investigating the matter to assess whether Trump’s conduct warrants criminal prosecution. In fact, there’s a rising chorus of complaints that it appears that the Justice Department may not be criminally investigating these matters.
As a former career federal prosecutor, I sleep well at night, secure in the bedrock belief that my friends and former colleagues at the Justice Department are, indeed, criminally investigating these matters.
It’s true that we have no public reporting that the Justice Department is criminally investigating Trump for attempting to corruptly retain power. But frankly, that is as it should be. Ordinarily, the Justice Department doesn’t speak about or even confirm the existence of an criminal investigation.
We need only look to the recent arrest of Trump’s longtime friend and inaugural committee chairman, Tom Barrack. On July 20, an indictment landed like a lightning strike on a day when no one was expecting a storm. The public didn’t know that Justice Department prosecutors were working long and hard, presenting evidence of Barrack’s suspected crimes to the grand jury. Yet after reading the Barrack indictment, I can tell you from experience that the kind of evidence documented therein took FBI Investigators and federal prosecutors thousands of work hours to obtain, assemble, analyze and present to a grand jury on the road to indictment.
Trump’s conduct appears to have violated any number of federal statutes. As Barbara McQuade, Joyce Vance and Lawrence Tribe compellingly argue in their recent joint op-ed in The Washington Post, Trump potentially committed the following crimes: conspiracy to defraud the United States, obstruction of an official congressional proceeding, inciting an insurrection, seditious conspiracy and others. Let’s look just at the crime of conspiracy as it relates to the conduct of Trump and Clark. A conspiracy is simply an agreement between two or more people to commit a crime. Then one of the conspirators would have to do one thing toward the commission of the crime, or what the law refers to as an “overt act.” Once the overt act is committed, the crime of conspiracy is complete and can be charged. It is no defense that the conspirators didn’t ultimately commit the crime they agreed to commit. As part of his quest to corruptly retain power, Trump told Justice Department officials to lie about the election results, say they were corrupt and just let him take it from there. In other words, Trump was enlisting co-conspirators. Clark willingly joined the conspiracy. Thereafter, Clark drafted and circulated to other Justice Department officials a letter to Georgia state officials describing nonexistent election fraud. I defy a single person with any prosecutorial experience to plausibly argue that there is insufficient evidence to investigate whether a crime “may have occurred.” Indeed, some of Clark’s letter was downright Trumpian: “The Department of Justice is investigating various irregularities in the 2020 election. … We have identified significant concerns that may have impacted the outcome of the election in multiple states. … No doubt many of Georgia’s state legislators are aware of irregularities, sworn to by a variety of witnesses, and we have taken notice of their complaints.” This is absurd in the extreme; it reads like something from The Onion. But it is the opening salvo in a letter that represents Clark’s attempt to persuade Georgia state officials to reject Biden’s election win in favor of selecting a slate of electors for Trump. Drafting and circulation this letter is an overt act in the Trump-Clark conspiracy. Why am I so convinced that the Justice Department is criminally investigating Trump? Simple: The standard for the FBI and the Justice Department to open a criminal investigation is “adequate predication.” That’s just a fancy way of saying there is some evidence that a crime may have occurred. More precisely, the FBI’s Domestic Investigations and Operations Guide defines “predication” as some evidence that “an activity constituting a federal crime … has or may have occurred, is or may be occurring.” I defy a single person with any prosecutorial experience to plausibly argue that there is insufficient evidence to investigate whether a crime “may have occurred.” I have confidence that the Justice Department has “adequate predication” that Trump may have committed an election-related crime and is investigating accordingly. Justice often seems to take forever. And then, it comes all at once. We’ll just have to stay tuned.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
