Senate Democrats see risks to Trump prosecution

Senate Democrats are not calling on the Department of Justice to bring charges against former President Trump for his actions in the lead-up to and during the Jan. 6, 2021, attack on the Capitol, despite a recommendation from the House panel investigating the unprecedented event.

While members of the House Jan. 6 select committee are ramping up pressure on federal prosecutors to indict Trump, Senate Democrats are taking a more cautious approach, with some arguing there’s a “high bar” for prosecuting a former president.  

“I think you should be careful about prosecuting former presidents. I think it’s OK to have a high bar when it comes to bringing charges against former chief executives. If there’s clear and convincing evidence then the Justice Department should proceed, but they should be pretty careful about doing so,” said Sen. Chris Murphy (D-Conn.).  

Sen. Tim Kaine (D-Va.) acknowledged there are political risks to indicting a former president who still has strong support within the Republican Party, but he warned that failing to hold Trump accountable for his actions also has potentially negative consequences. 

“I don’t tell prosecutors what to do, but I think the evidence that has been laid out is very compelling,” he said.  

Some Democrats warn that any prosecution of Trump might plunge the Justice Department into a political maelstrom and create a backlash from the former president’s fervent supporters.

“It is a very realistic concern, so there’s a risk,” Kaine said of a potential political backlash. “But there’s also a risk of allowing bad behavior to go unpunished.   

“When there’s bad behavior and there’s no consequence it tends to encourage more bad behavior,” Kaine said. “In addition to just looking at the evidence, you have to weigh both of those.” 

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) noted that Justice Department Special Counsel Jack Smith is already investigating Trump and observed the evidence compiled by the House Jan. 6 Committee during its 18-month investigation “could be an important part of it.” 

He said a final decision has to be made by Attorney General Merrick Garland.  

But Durbin, who has jurisdiction over the Justice Department, acknowledged it will be a tough call on whether to bring a case against Trump.  

“There’s risk on both sides. What [Trump] would do in reaction to it, I can’t tell you. Our failure to acknowledge his role in this criminal activity would be an omission on our part,” he said in reference to Trump’s role in inciting the attack on the Capitol.  

Trump warned in September that the nation would face “problems … the likes of which perhaps we’ve never seen” if he was indicted.  

“I don’t think the people of the United States would stand for it,” he warned.  

Trump on Monday dismissed the criminal referrals made by the House committee on Monday as politically motivated, calling it the work of a “kangaroo court.”  

The House panel referred four charges to Justice: inciting an insurrection, obstructing an official act of Congress, conspiring to defraud the United States and conspiring to make a false statement. 

In contrast to House Democrats, who are urging the Justice Department to prosecute Trump and his allies, Senate Democrats are keeping their distance.  

Sen. Richard Blumenthal (D-Conn.), a former state attorney general and member of the Judiciary Committee, noted that the “recommendation of the committee is a referral” and “doesn’t dictate what the Department of Justice can do.” 

“There’s a totally different standard for a referral and a prosecution,” he said. “I think the referral is based on compelling, powerful evidence of culpability, but the Department of Justice will have to make its own decision.” 

Democratic lawmakers caution that the standard for conviction in a criminal trial — evidence beyond a reasonable doubt — is in itself a high bar and warn that it only takes one member of a jury to force a mistrial.  

Some lawmakers warn that any prosecution of Trump that fails to produce a conviction will be taken by the former president and his supporters as an exoneration, which is how they treated former Special Counsel Robert Mueller’s lengthy investigation of allegations of collusion between Trump’s 2016 presidential campaign and Russian government officials.  

And some Democrats wonder why it took Garland so long to appoint a special counsel to handle criminal investigations of Trump, giving Smith a tightening window to bring charges against the former president before the first contests of the 2024 Republican presidential primary.  

So far Trump is the only Republican to formally launch his presidential campaign, which he announced on Nov. 15.   

Kaine said he was “surprised” that Garland took so long to appoint a special counsel to oversee investigations of Trump.  

“That has surprised me,” he said.  

But another Democratic senator who requested anonymity to discuss the Justice Department’s sensitive deliberations said that Garland felt he had to appoint a special counsel once Trump formally became a candidate for the White House — heightening the political stakes of the probes. Garland publicly said that is why he chose to appoint a special counsel.

“They wanted to operate it out of the Justice Department, but I think once Trump declared he was running for president they decided it was untenable,” the source said.