To Indict Trump or Run Against Him? That's Democrats' Toughest Question

The House of Representatives' Select Committee investigating January 6, 2021 continues to hear testimony revealing previously unknown details about the events that led to the Capitol riot.

As the live hearings progress, speculation has mounted about the possibility of bringing charges against former President Donald Trump. This raises a key question for Democrats: how indictments against Trump would affect their political campaigns against him and his Republican supporters.

Tuesday's hearing touched on the question of Trump's legal exposure when former White House aide Cassidy Hutchinson told the committee that former White House counsel Pat Cipollone warned against Trump going to the Capitol on January 6.

"We are going to get charged with every crime imaginable if that happens," Cipollone said, according to Hutchinson.

Political experts who spoke to Newsweek said it would be highly improper for President Joe Biden to order the Department of Justice to investigate or prosecute Trump and it's implausible to imagine he would.

Nonetheless, Biden has indicated that he believes Trump is a threat to U.S. democracy and Attorney General Merrick Garland could investigate the former president if the DOJ believes there is evidence of wrongdoing. An investigation—or indictments—could also upend the 2022 midterm elections.

Any DOJ move against Trump would almost certainly be seen as politically motivated by the former president and his allies, adding a new dimension to fraught midterm elections where Democrats appear on course for major losses.

A High Bar

Thomas Gift, founding director of University College London's Centre on U.S. Politics, told Newsweek that bringing a prosecution against Trump would be difficult and the DOJ would have to meet a very high bar to justify it.

"Prosecuting Trump is fraught with huge political and legal pitfalls, and if Merrick Garland wants to go ahead with a case, one point is obvious: he'd better not miss," Gift said.

"For Democrats, after all, perhaps the only thing worse than not prosecuting Trump is prosecuting Trump and losing," he said.

Gift said that Trump had committed "extraordinary acts of malfeasance" but "the fact remains: at least with the evidence that's been presented, it's not an open-and-shut legal case."

"The bar for both criminal incitement of violence and seditious conspiracy are steep, and if Garland isn't doubly sure he can win, that may be enough to dissuade the DOJ from indicting," Gift added.

A Threat to Democracy

Paul Quirk, a political scientist at the University of British Columbia in Canada, tells Newsweek that Biden finds himself in an "awkward position" over a potential Trump prosecution.

"He has declared the urgent priority of protecting democracy and blocking efforts by Trump and MAGA Republicans to undermine or overturn free and fair elections in the current election year and beyond. He has pointed out that Trump remains a serious threat to American democracy," Quirk says.

"Through the efforts of the House January 6 committee, strong evidence has emerged of multiple serious crimes, committed by President Trump, as well as his lawyers, other aides, and supporters—all aimed at overturning the result of the 2020 election," he says.

"Although this evidence has not been subjected to cross-examination, challenged by opposing witnesses, or tested in a trial, it amounts to a very compelling evidence of likely criminality. And yet it is not at all clear that Biden's Justice Department has gotten the memo," Quirk says.

He pointed to the fact that the DOJ has issued subpoenas and executed search warrants as part of its investigation into a plan to present false Electoral College certificates but there is no indication that DOJ is investigating Trump.

"Garland may be afraid of giving the appearance of a politically motivated prosecution," Quirk says. "But as critics point out, that objection is itself politically motivated.

"More important, to refrain from prosecuting the crimes involved in a concerted effort by a president and his supporters to keep him in office after he had lost an election would fail to deter future efforts to undermine democracy," he adds.

Quirk says that "would embolden the many Republicans in numerous states who are busily making plans to manipulate or set aside the results of elections in 2022 and 2024" and "fail to deal with by far the most serious threat to American democracy."

Midterm Strategies

David A. Bateman, an associate professor of government at Cornell University, tells Newsweek that an investigation or prosecution of Trump would likely upend both parties' approaches to the midterms.

Bateman says that Garland's decision "will almost certainly be independent of narrow party or electoral calculations, one way or the other" but would impact Democrats' campaigns.

"Right now, Democrats across the country are devising strategies for November. I expect most do not think running against Trump is their best choice," Bateman says, though he acknowledged the opposite may be the case in some races where the GOP candidate can be painted as a "water-carrier" for Trump.

He says that incumbent Democrats in competitive districts "are likely to try and run on local issues" since "the national context is largely unfavorable to them."

"And where national issues are prominent in their campaigns, they'll want it to be on issues where they have an advantage, which includes abortion, gun control, but also Trump," he says .

Bateman says that Republican challengers will want to emphasize "national issues where they have an advantage, inflation for sure, but not abortion or Trump."

"A Trump indictment messes up these strategies," he said. "It will be a major focus of political and public discussion, giving Democrats a national issue—like abortion—on which they can run, and forcing or inviting Republicans to take a position that in most places is probably not going to help them much and which will distract from inflation."

Weakening Trump

A prosecution, correctly handled, could have the effect of weakening Trump politically along with his supporters in the Republican party, according to Quirk.

Quirk says that Biden cannot order Garland to investigate Trump but he "can make it emphatically clear, through public statements, that he regards the ongoing Republican efforts to overturn elections as a far greater risk to American democracy than the angry and potentially violent protests that a Trump prosecution might elicit from the Trumpist Republican base."

He adds that "the MAGA base would dutifully ignore the evidence and assume that any prosecution of Trump or his allies was pure hoax."

"But well-grounded prosecutions, putting the evidence of serious criminality on public display, would severely weaken Trump and the subversive faction of the Republican Party, not strengthen them," Quirk says.

January 6
In thus combination image, Pro-Trump protesters gather in front of the U.S. Capitol Building on January 6, 2021 in Washington, DC and insets from left to right, Attorney General Merrick Garland, Donald Trump and Joe Biden. Speculation has grown about potential charges against Trump relating to January 6, 2021.