An investigative committee of the House of Representatives in Washington recommended this evening (Monday – Israel time) that former President Donald Trump and some of his aides be criminally prosecuted. Trump is accused of trying to thwart the confirmation of the results of the November 2020 presidential election, in which he lost to Joe Biden; who tried to defraud the US government through forgery; and who incited his supporters to attack the Congress building on January 6, 2021 in an act of “insurrection”. These charges fall into four sections.
“The whole purpose of the Trump conspiracy was to thwart the legal process of the transfer of power in the United States,” said committee member Jamie Raskin, a Democrat from Maryland.
Although the committee’s recommendations in themselves do not have legal validity, they do have political and public validity. This is the first time in the 230 years of the American Republic that such recommendations have been made against a former president.
The recommendations will probably be put to a vote in the plenary of the House of Representatives this week, and after their approval they will be transferred to the Federal Ministry of Justice. The decision whether to request Trump’s prosecution rests with the Minister of Justice, who in the US holds all the powers of the Attorney General (his title in English is ‘Attorney General’). The final decision on prosecution in the US rests with a ‘grand jury’, but is usually a matter of certainty.
How Trump tried to steal the “stolen” election
The decision to recommend Trump’s position was the expected culmination of an investigation process, which began shortly after the events of January 6, 2021. The committee’s schedule was shortened and went with the victory of the Republicans in the elections to the House of Representatives in November. They did win a tiny majority, but in the American system, full control of each of the two houses of Congress is in the hands of the majority party, and it includes the hammers of the chairman of all committees. The general expectation is that the Republicans will disband the investigative committee. Only two Republicans have sat in it in the last two years, and both were denounced as rebels in their party. They were not elected to the new Congress, which will begin its term next month.
The recommendations themselves do not include much new. A series of public hearings in recent months presented a detailed picture of a defeated president, who went out of his way, and sometimes came close to going out of his mind, in an attempt to thwart the constitutional process.
Although the results showed that he lost by a margin of seven million votes, he continues to believe that he won an “overwhelming victory”, and the election was stolen from him. Lawyers on his behalf and in his opinion filed more than 60 lawsuits, in state and federal courts, in an attempt to prevent the approval of the elections. All claims were rejected, including his appeal to the Supreme Court.
Trump encouraged his supporters to submit “alternative” lists of electors from a number of states where he lost. The presidential elections in the USA are not direct, voters vote in favor of lists of “electors”, in whose hands lies the formal authority to determine the identity of the winner. Since the late 19th century, the identity of electors has not been questioned. Trump hoped he could convince Congress to adopt the alternative lists, thereby denying Biden a majority.
He heaped praise on Vice President Mike Pence, who chaired the congressional session that approved the results. Pence rejected Trump’s appeal, saying he did not have the constitutional authority to interfere in the process. All the heavyweight jurists agreed with him. When Pence’s refusal became clear, Trump encouraged thousands of his supporters, who gathered in front of the White House in Washington, to march towards Congress Hill “and fight like hell” to “save our country”.
Shortly after, hundreds of his supporters forcibly broke into the Congress building, beat security personnel, occupied the plenary sessions of the House of Representatives and the Senate, and forced the members of Congress, including the Vice President, into the security basements. Throughout this attack, Trump refused to intervene, not even responding to his children’s pleas. When his senior aide warned him that his behavior would harm his legacy, he replied without batting an eyelid, “No one will be interested in my legacy if I lose.”
The Republicans are back in the fold, but…
The Democrats in Congress tried to punish him back in January 2021, through a process called ‘impeachment’, which means a decision by the House of Representatives to put a federal office holder on trial in the Senate plenary. Conviction in the Senate requires a two-thirds majority. If the incumbent is convicted, he automatically loses his tenure.
In this case, Trump was impeached by the Senate only after he finished his term. Had he been convicted, he would have been barred from returning to federal office, including of course the presidency. But most Republicans in the Senate voted against his conviction.
He recovered politically with dizzying speed from the stain that stuck to him, and returned and took control of the Republican Party without difficulty. He pursued all of his critics with a vengeance, and succeeded in purging them from the ranks of the party by supporting their opponents in the primary elections.
Almost all the leaders of the party and prominent members of its legislature made a pilgrimage to Trump’s private golf club in South Florida. Soon, the political system was taken over by the certainty that Trump would easily win the party’s presidential nomination in 2024. He announced that he would officially announce his candidacy immediately after the congressional and gubernatorial elections in November.
The almost universal expectation was that the Republicans would do well in this election. There was a debate whether their victory would be equal against “Gal”, or against “Tsunami”. Expectations were not realized. The Republicans have indeed regained the House of Representatives after a four-year hiatus, but with such a small majority that they have difficulty even electing a speaker (in the American system, the speaker of the House of Representatives solely controls the agenda). In the Senate, Democrats managed to increase their slim majority by one seat, an almost unprecedented feat for a governing party, midway through the first term of an unpopular president.
A growing number of Republicans attribute these results to Trump. They believe he has caused a sense of alienation and anxiety among millions of young, independent voters who would have voted for the party if not for Trump. Since the November elections, signs have multiplied that the former president is losing control of the party – and himself. His outbursts became even more uncontrolled than usual. And he displayed a surprising degree of callousness when he hosted two avowed anti-Semites for lunch at his Mar-a-Lago golf club. Polls show a significant drop in support for him. A recent poll puts him only 5% ahead of his main likely opponent, Florida Governor Ron DeSantis, who is 30 years or more his junior.
Before the election, the Republicans mercilessly attacked the House Investigative Committee, denying its legitimacy, describing it as a “field court”, and hinting that they would investigate the members of the Investigative Committee themselves, when they took control of the House of Representatives. It is likely that they will still try to damage the legitimacy of the commission’s report, but they may do so with much less desire and determination. The November election taught them that the American public is not interested in clearing the name of Donald Trump or restoring his status.
The legal millstones on his neck
The recommendations from the investigative committee of the House of Representatives are not the only legal millstone hanging around the former president’s neck. The Attorney General and the Federal Bureau of Investigation (FBI) are investigating him for keeping classified intelligence documents in his golf club, against the language of the law and despite repeated demands that he return them to the government.
A lawsuit is almost certain to be brought against Trump in the state of Georgia, for a recorded attempt to influence the number of votes in the presidential elections (“Find me 11,780 votes”, he is heard imploring the Secretary of State of Georgia, who is in charge of the integrity of the elections).
The president’s family company was convicted of tax fraud in a New York court last month. And the hand is tilted.
If he is prosecuted, and convicted of the offenses attributed to him by the investigative committee of the House of Representatives, Trump may be sentenced to prison in practice. This state of affairs increases his determination to fight for his legal and political status. For all his difficulties, a recent poll last week showed him tied with President Biden. He is still able to collect huge capital for his political operations, and he is still able to attract crowds to his meetings. Even if the party establishment has come to or will come to the conclusion that Trump will harm the party’s chances in the next presidential election, the former president has already proven that he is capable of defeating this establishment.
Trump suffered a heavy blow on Monday evening, but it was far from fatal. He will continue to set the tone, or certainly try to set the tone in American politics for many days to come.