Translated, “Let Justice be done though the heavens fall.” I don’t read Latin, I had to look it up.
No doubt you have heard this phrase. We don’t really know its origin, it might have come from Ancient Rome or was published in 17th century British literature. I’m not that well versed, my first learning of this phrase was in the movie “JFK,” where “Jim Garrison” uses it to justify his prosecution of Clay Shaw for his alleged complicity in the assassination of President Kennedy.
Real Jim Garrison did prosecute Shaw and lost the case. There’s no record of the heavens falling.
I’m writing this on the eve of the January 6th Committee’s meeting to reveal its criminal referrals to the Department of Justice. According to reporting (caveat emptor), top of the list of those to be referred is the 45th president of the United States, Donald John Trump.
According to NBC news, the charges to be referred will be obstruction of an official proceeding, conspiracy to defraud the government, and inciting or assisting an insurrection. It is expected that as these referrals are being made the Committee will reveal the supporting evidence of each of these three findings. Whatever else, it’s going to be a show.
Hopefully there will be other referrals of those close to Trump who aided him in his efforts to subvert a legal democratic election. Speculation is that four congressmen will be referred, not to the DOJ but to the House Ethics Committee. To me, given that the republicans under Speaker…whoever…will assume control of the House on January 3, 2023, that’s kind of like punishing four foxes by sending them to the hen house.
No doubt there will be others referred to the DOJ (I’m looking at you Giuliani, Bannon, Eastman, Meadows, Flynn, Stone, Powell, and 100s more who could be named). The reaction to these referrals will be so intense that the actual Report, to be published and released two days later, will seem an anticlimactic after thought.
That said, the release of the Committee’s finding serves an important function in a democracy. There was an attempt to reverse the outcome of the 2020 presidential election, of that there is no serious doubt. It is vital for the sake of our continued democracy that the Committee reveals, in no uncertain terms, the who, what, when, and hows of the events leading up to the where on January 6, 2021.
It’s what happens next that’s most important. There will be enormous pressure put on the DOJ to prosecute whomever is named. There will be a public outcry by the president’s supporters, along with republican members of Congress. Many of the congressmen who scream “foul” wish they never heard Trump’s name. Many of us know how they must feel.
The decision to prosecute or pass may well be the most impactful in the country’s history. We “know” that if it was anybody other than former failed twice impeached President Trump, they’d be prosecuted in a nanosecond. But the fact is, Trump is a former failed twice impeached president (can’t say this often enough), and that means something.
By the time all is said and done, we’ll know what Trump did or didn’t do. Proving actus reus will be a snap. Trump’s public statements, his tweets, the speech on January 6, and Trump’s repeated assertions that if he lost the 2020 election he would never accept the results.
It’s the mens rea, that is the “intent,” that might be problematic. The question will be, what did Trump intend when he committed the acts alleged in any criminal complaint. Intent can be proved either by direct evidence or inferences based on other related evidence. Proving what’s in a person’s mind, even someone who is as transparent as Trump, is rarely easy.
If the DOJ obtains an indictment and prosecutes the case, seating a jury will be problematic. There used to be an analysis of jurors as being those who couldn’t escape jury duty. That does have an element of truth. That said, jurors work hard to meet their responsibilities to render verdicts based on evidence, free of any influence or bias. That’ll be a very tall order.
Moreover, the prosecutors must prove every element of every charge beyond a reasonable doubt. That is a high standard to meet. It doesn’t require the elimination of all doubt, just “reasonable” doubt. The judge’s instructions will be important here.
The prosecutors will also have a good faith belief that they can win at trial and that they would prevail in any appeal if the defendant is convicted. And, they must consider whether it’s in the public interest to even bring a prosecution.
Related to the public interest, there’s the politics. In this climate, it won’t take much to divide this country more than it already is. However, not prosecuting any referred person may result in the same level of division. A classic no win situation, and we’re sailing in uncharted waters here.
Sitting here in the nosebleed section of the cheap seats, I follow the guidance of “Let justice be done…” Not prosecuting Trump, assuming the reports are accurate and he will be referred for prosecution, will serve in the minds of millions as an exoneration of the former failed twice impeached president. That cannot happen. Better that he be prosecuted and acquitted than not prosecuted at all. At least the rule of law would be served and hopefully vindicated.
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