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Lock Him Up?

Three ways to prosecute Trump, right now.
February 3, 2022
Lock Him Up?
(Photo by Win McNamee/Getty Images)

There’s a great deal of excitement in some quarters about the prospect of criminally prosecuting Donald Trump. Either for his role in the January 6 insurrection, or his efforts to overturn the results of the presidential election, or even for widespread financial fraud at the Trump Organization.

It is true that the Department of Justice has now charged some defendants with seditious conspiracy, and that, if such a conspiracy is proven, it could subject people who were nowhere near the Capitol, up to and including the president, to criminal liability for what happened on January 6.

It is also true that the New York attorney general is aggressively investigating Trump’s financial dealings.

And it is true, too, that a prosecutor in Georgia has convened a grand jury to look into Trump’s efforts to pressure the Georgia secretary of state, Brad Raffensperger, to “find” enough votes so that Trump would win.

That’s all very exciting and who knows what might come of it. But in all this drama, we are overlooking a lot of mundane illegal activity that also deserves to be investigated and, very possibly, prosecuted. Because sometimes you get John Gotti for murder. But sometimes you get Al Capone for tax evasion.

So here are three legal layups—investigations so straightforward that they probably wouldn’t even require a grand jury. These may seem like minor offenses compared to seditious conspiracy, but a felony is a felony and a prison sentence is a prison sentence.

The Ukrainian Coverup

President Trump’s efforts to threaten Ukraine into launching an investigation into Joe Biden resulted in Trump’s first impeachment trial. But the events that led up to that trial, specifically how the whistleblower complaint was handled, have never been properly investigated.

To refresh your memory: Someone who had knowledge of Trump’s call with the Ukrainian president filed a whistleblower complaint. The Office of the Inspector General quickly concluded that it was both credible and “a matter of urgent concern.” Consequently, the OIG had a legal duty to report it to Congress.

But when the OIG filed what should have been a pro-forma notification of the complaint with the Director of National Intelligence, something happened. Instead of facilitating the passing of the complaint to the congressional intelligence committees as the law requires, the administration began a frantic effort to bottle it up, permanently.

There are real questions here about who knew what, when, and what they did about it. It is not impossible that Trump himself was involved in the effort to suppress the complaint—even though, as the subject of the complaint, he should not have been made aware of it, much less allowed to interfere with how it was processed. There’s written evidence—from Senator Ron Johnson, of all people—strongly suggesting that Trump knew about the complaint by August 31, 2019 and was already actively covering his tracks.

But whether it was President Trump or someone close to him, it’s beyond dispute that someone made a serious effort to suppress the complaint that eventually led to Trump’s first impeachment trial. We ought to know what exactly happened and if any laws were broken.

If they were, those people should be prosecuted. And if laws were not broken in this case, then we probably need some new laws.

Shredding Official Records

It’s now beyond dispute that President Trump regularly destroyed official records by tearing them into shreds. This was documented as early as 2018, when two federal employees, whose job it was to try and piece documents back together, were fired for discussing their job with the press. Just this week, the National Archive confirmed that Trump had a habit of tearing up documents when it provided several documents to the House Jan. 6 Committee which had been laboriously taped back together.

This wouldn’t be quite as dramatic as nailing Donald Trump for the events of January 6 but it would be more than made up for by the bigly load of cosmic irony. If Donald Trump really did tear official documents—documents that are required to be preserved by the Presidential Records Act—into little pieces, then he violated 18 U.S.C. § 2071, which makes it a felony to mutilate or destroy an official record. Whether or not someone was able to put the record back together later is irrelevant.

You might recognize 18 U.S.C. § 2071. It’s been in the news before. It’s one of the statutes Republicans accused Hillary Clinton of violating when she erased the emails on her server.

The Republican National Convention

When Donald Trump decided that he’d hold part of the Republican National Convention on federal property and stage his acceptance speech from the White House, the Office of Special Counsel produced a letter explaining that this was perfectly legal because President Trump was not subject to the Hatch Act, which prevents federal employees from engaging in partisan politics. And even if it were illegal, the Hatch Act itself is fairly toothless and carries no criminal penalties.

But there is another statute, 18 U.S.C. § 610, which does. This statute makes it a felony—punishable by up to three years in prison—to “intimidate, threaten, command, or coerce” any federal employee for the purpose of getting them to engage in political activity. And while it’s true that President Trump himself wasn’t bound by the Hatch Act, all other federal employees, including White House staffers, were.

As many as a thousand Republicans were invited to attend the August 27, 2020 event. There was a stage, large screens and a backdrop of hundreds of flags, all set up on the White House South Lawn. It was a substantial undertaking. Putting aside whether President Trump coerced the federal government to make an in-kind donation to his campaign by making free use of the White House, are we really expected to believe that not a single federal employee was involved in supporting this event?

Who issued the security passes? Who checked those passes and screened the thousand people through security? Who set up all of the equipment? Who took it down? Who repaired the lawn afterwards? Were any of these people federal employees? Because if they were, unless these people spontaneously volunteered to work late on a Thursday night, then somebody—let’s call him Individual-1—ordered people to participate in President Trump’s presidential campaign. This is exactly the kind of thing that 18 U.S.C. § 610 was designed to prevent. Somebody ought to look into this, if only to ensure that it doesn’t happen again.

Perhaps the best thing about all these investigations is that they don’t necessarily need to involve the Department of Justice. Since these are all potential crimes that occurred in the executive branch itself, they can all be investigated, at least initially, by the appropriate Inspectors General.

And investigated they should be. In America, laws aren’t just for little people. They’re for everyone, including the president. In fact, they apply particularly to the president.

After all, the laws don’t faithfully execute themselves.

Chris Truax

Chris Truax is an appellate lawyer in San Diego and the CEO of, the first system designed to deter foreign interference in American social media. He is a member of the Guardrails of Democracy Project.