Kevin J. O'Brien is an attorney specializing in white-collar crime. He’s a partner at Ford O’Brien Landy LLP and worked as the assistant U.S. Attorney to the Department of Justice in the Eastern District of New York. So when I asked him about the possibility of a former President Donald Trump indictment, he was happy to give me the entire 4-1-1.
O’Brien explained that there are two levels of inquiry in a U.S. Department of Justice (DOJ) indictment of Trump.
“One is, how strong is the case?” O’Brien tells Daily Kos. “Because the DOJ isn't going to indict someone just because it's possible. There's a reason why the federal government wins 90-plus percent of its cases in this area. They're very selective, especially in a high-visibility case like this, where there are political ramifications. They're going to be especially careful.” The second thing the DOJ will consider, O’Brien says, is whether an indictment is good for the country or not.
RELATED STORY: Despite overwhelming evidence of guilt, the DOJ has a tough decision around prosecuting Trump
But the key to indicting Trump, O’Brien hammers, is for the House Select Committee investigating Jan. 6 to establish a real and verifiable “link” between the former president and the actions of the insurrectionists.
“If they have a physical threat on the Capital and the people inside it—that becomes a compelling case that I think few people could argue with.” But, he adds, he doesn’t think that link has been made yet.
“The technical term in the law is ‘conspiracy,’ an agreement to do something illegal. If they can't show that, then the physical storming of the Capital is not part of the case, and a lot of the suggestive evidence simply isn't relevant.”
“We hear these guys talk about the fact that they went in [to the Capitol] because of Trump, that they were emboldened by what Trump said. Well, absent evidence of a conspiracy, that type of statement isn't even admissible,” O’Brien says.
As for Attorney General Merrick Garland, O’Brien believes he is very “conscious of preserving the integrity of the Justice Department” at the moment, which, he adds, “Bill Barr did a pretty good job of dragging into the mud.”
The critical thing to remember, O’Brien says, is that we—the American people—only know what we know. The DOJ isn’t sharing everything they know. There could be a grand jury, but if there is, it’s a secret.
The decision to indict comes down to precedent. No U.S. president in history has ever been indicted, much less criminally prosecuted. But, O’Brien says, that doesn’t mean there won’t be a first time.
“There are honorable losses. Sometimes you have to bring a case just because it has to be brought. But in a case like this, which is highly politicized, the last thing they want is to do is put the country through this and give Trump a platform to complain about persecution, blah, blah, blah, and then have the jury acquit him,” O’Brien says.
Campaign Action
Of course, if Trump isn’t indicted, many in the nation will feel he’s gotten away with a series of openly criminal acts, including but not limited to a failed coup.
O’Brien says he hopes the hearings will expose Trump to “right-thinking people,” and he adds that a case against Trump in Georgia looks pretty “serious.”
Fani Willis, the Fulton County, Georgia, district attorney, is leading a special grand jury investigating Trump’s efforts to reverse the 2020 election after he pleaded with Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.” Raffensperger was subpoenaed to testify in June. According to the Atlanta Journal-Constitution, he is one of the first among about half a dozen witnesses to testify before the 23-person special grand jury. CBS News reports that the secretary of state also received a subpoena for documents for all "writing or medium that memorializes the events surrounding the Jan. 2, 2021, telephone call with President Donald Trump" and "any writing or medium that explains" Trump's demeanor during the call.
But O’Brien muses over why there’s no investigation into Virginia “Ginni” Thomas, wife of Supreme Court Justice Clarence Thomas, and her involvement in a scheme to undermine the 2020 election.
According to reporting by The Washington Post, Ginni Thomas pressured 29 GOP Arizona lawmakers to disregard Joe Biden’s win and “choose” presidential electors who would turn over the state’s election results.
“If you incited 27 people … to break the law. I mean, if that's a parallel to what's been going on, that the committee knows about it and has talked about it, that's alarming. But it's even more alarming if there's a connection between those things. She's going home every night, and she calls [Justice] Clarence [Thomas] her ‘best friend,’ and they're politically somewhat aligned, and he’s deciding cases that bear a disclosure. I mean, that just jumps out at you.”
We talk to expert Brandi Buchman about everything you need to know for the Jan. 6 committee, hearings, and investigation on Daily Kos' The Brief podcast