The biggest question set off by the special committee investigating the Jan. 6, 2021, Capitol attack has been: Will the Justice Department prosecute former President Donald J. Trump for his role in trying to overturn the election? The question has become even more prominent with the news that federal prosecutors have begun asking witnesses about Mr. Trump in their criminal investigation.
Legal commentators, lawmakers and average Americans all seem to have an opinion. To better understand this question and the issues around it, The New York Times interviewed one of the last federal prosecutors to have led an investigation into Mr. Trump’s conduct.
That prosecutor, Andrew Goldstein, was one of the lead investigators who examined whether Mr. Trump tried to obstruct the Russia investigation carried out by the special counsel, Robert S. Mueller III. In an interview with the New York Times podcast “The Daily,” Mr. Goldstein laid out the obstacles to a prosecution. Listen to the full interview here.
Here are some takeaways from that interview:
Prosecuting Trump would be harder than it looks.
Members of the House select committee — including its vice chairwoman, Representative Liz Cheney, Republican of Wyoming — have publicly read from the criminal code the laws they believe Mr. Trump broke, including obstructing an official proceeding of Congress. Mr. Goldstein said that while the committee has done a good job of laying out the potential criminality, it is far more difficult to make a case in court.
In court, the standards for entering evidence are higher and prosecutors need to prove allegations beyond a reasonable doubt. The case also would need to survive legal appeals that would likely go all the way up to the Supreme Court.
Key Revelations From the Jan. 6 Hearings
Making a case against Trump. The House committee investigating the Jan. 6 attack is laying out a comprehensive narrative of President Donald J. Trump’s efforts to overturn the 2020 election. Here are the main themes that have emerged so far from eight public hearings:
“Without question, what happened on Jan. 6 was horrendous for our country and for our democracy,” Mr. Goldstein said. “You certainly wouldn’t want to look away if there’s criminal wrongdoing there. But you also want to make sure that the cases that you bring are strong and are the right cases to bring.”
There are legal hurdles to the most likely charges.
There are three crimes that committee members and legal experts have said Mr. Trump would be most likely to be investigated for:
1. Obstructing an official proceeding of Congress
2. Defrauding the United States
3. Seditious conspiracy
Mr. Goldstein said there appears to be the most material for the first charge, obstructing an official proceeding of Congress — in this case, the certification of the Electoral College vote that was interrupted on Jan. 6 when Trump supporters stormed the building.
To prove such a charge, prosecutors would have to show that Mr. Trump had a corrupt intent when he took an action that was designed to interfere with the proceeding, meaning that he knew he was doing something wrong. Mr. Goldstein said there was likely enough evidence on the public record to prove corrupt intent but that finding an action would be more challenging.
“In the end I think the prosecutor would still need to point to an act — an action — that the president either took himself, or directed to have been taken, that would itself obstruct the proceeding,” Mr. Goldstein said.
A decision on prosecuting Trump could have broader implications.
Even if prosecutors are able to meet those elements, Attorney General Merrick B. Garland would have an extraordinary decision to make: Is it in the best interests of the country to bring charges against a former president, especially one who may be running again for that office?
Such a prosecution could draw the Justice Department into partisan politics in extraordinary ways.
“One of the things that the Department of Justice has to weigh in this kind of a situation is both, what are the potential ramifications of prosecuting, but also the ramifications of not prosecuting,” Mr. Goldstein said.
“And here, in part because of just how high profile all of this is,” he continued, “if there were very clear evidence of a crime and it was sort of very straightforward and provable, but the Department of Justice walked away, there is a real risk of the American people thinking that there are two systems of justice. And that would be devastating to the mission of the department.”
