Tuesday 17 August 2021

CNN’s Jeffrey Toobin Calls on AG Merrick Garland Not to Pursue Charges Against Trump: There’s ‘No Basis to Prosecute’ Him

 Donald Trump has gained some support from an unlikely source.

CNN’s Jeffrey Toobin penned an op-ed on Monday calling on Attorney General Merrick Garland not to pursue charges against the former president despite his attempts to overturn the 2020 election and his role in the January 6 Capitol attack.

“It’s one thing to describe the former president’s behavior as disgraceful and wrong — and I’d share that view — but quite another to argue that Trump should be criminally prosecuted,” Toobin wrote. “Based on the available evidence, there is no basis to prosecute Trump and little reason even to open a criminal investigation.”

The legal analyst gave his readers a rundown of laws that Trump critics claim he violated, offering an explanation on why he doesn’t view the former president’s actions as criminal.

Toobin got the big one out of the way first, the Insurrection Act, which many believe — CNN hosts included — Trump violated during his January 6 speech, as his statements were viewed as a rallying cry to those who stormed the Capitol later that day.

Toobin argued there are “two insurmountable problems” with charing Trump for violating the Insurrection Act, which prohibits anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”

“First, Trump’s words were ambiguous. He urged a march to Capitol Hill, but he also discouraged violence,” Toobin contended. “Second, he could argue that he was seeking to uphold the rule of law by obtaining an accurate count of the election results, not seeking to rebel against the authority of the United States.”

When it comes to the baseless claims of voter fraud that the former president used in an attempt to overturn the 2020 election, Toobin admitted that “Trump committed this crime.”

Yet, under laws against election fraud, the offender’s intent must be clear and there has to be proof that he was “aware” that he was committing a crime.

“Trump would assert that he was seeking to uphold the law, not violate it, and prosecutors would have a hard time proving otherwise,” Toobin argued before hitting another potential charge: Obstruction of justice.

While laws prohibiting obstruction of justice make it a crime to influence an official proceeding, which Trump attempted during a call with Georgia Secretary of State Brad Raffensperger, Toobin argued that Trump’s intent would also pose a problem when it comes to prosecution.

“He had a First Amendment right to protest the count of the electoral vote, as did the protesters,” Toobin wrote. “It could be said that Trump encouraged the protesters to ‘impede’ the electoral count, but he would argue that he was doing so to make the count more accurate, not more corrupt.”

Toobin later hit at a favorite law for Trump critics, the Hatch Act, which prohibits federal employees from taking part in partisan political activity.

“Notwithstanding the Hatch Act, presidents and their staffs have engaged in partisan political activities since the birth of the Republic,” Toobin argued. “And Trump could argue that he was not ordering [Jeffrey] Rosen to engage in political activity, but rather to enforce the law.”

“Again, this criminal provision has rarely been invoked, and it seems unfair to raise it in connection with Trump’s dealings with his acting attorney general,” he added.

Toobin’s last law was “conspiracy to defraud the United States,” which makes it illegal to “conspire to commit any offense against the United States, or to defraud the United States,” including election fraud.

While the law does not require proof of underlying offense, and only calls for evidence that the defendant “made statements that he/she knew to be false,” Toobin argued that Trump could simply say he was not lying to Rose, but instead was “instructing him to state what Trump believed was true.”

“Investigations of presidential wrongdoing, by Congress and others, are wise and even necessary,” Toobin concluded. “But actual prosecutions are not, and Donald Trump should be the beneficiary of this tradition, even if he himself would surely not offer such grace to others.”

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