New news reports indicate the Department of Justice is investigating
former President Donald Trump's actions as part of its larger criminal
probe into the January 6th attack on the U. S Capitol to help us
understand what all this could mean. I'm joined by former federal
prosecutor Renato Mariotti, We're not a mariachi. Welcome back to
the news hour, so based on everything you've read. What is it appear
to you that the Justice Department is looking at with regard to former
President Trump
So there was a scheme that was hashed, which I think has been referred
to in the media is the fake collector scheme by which individuals
who are not actually chosen by their states as the electors for the
Electoral College were drafted and signed certificates that were
submitted to the United States Senate purporting to be the electors
of the state.
We've there have been recent news reports that some of the for example,
the attorneys that were preparing those materials actually used the
term fake elector in their email conversations. So my my understanding
based on what we reports have shown is that the Justice Department
believes that that that fake electric scheme constitutes a crime,
and they're investigating the actions and statements of former President
Trump with his advisors regarding the implementation of that scheme.
In the United States. Senate particularly relates to, uh, the former
vice president being urged by President Trump to set aside the rightful
electoral votes
and send it back to the states and or accept the fraudulent electoral
votes instead in order to overturn the election, So that's one set
of potential issues. You also told us that it's
Possible that the Justice Department is looking at incitement to
riot based on information that came out of the January 6th committee
hearings.
That's right. I mean, I think if we look purely at what came from
the January six hearings, the criminal statute that really stands
out to me as criminal incitement and and the reason why is because
the facts are not really in dispute. Obviously, the former president
did give a speech. Many of the people who heard that speech proceeded
to attack the United States Capitol, uh and you know, violent manner.
And the question is always been whether or not there would be sufficient
evidence to show that the former president intended to incite imminent
lawless action because obviously the words of his speech are mixed.
You could have arguments that could go both ways. Um, however, some
of the testimony, particularly if Cassidy Hutchinson, where she talked
about, for example, the former president being aware that the crowd
was armed, saying that they would not
Uh, we're not interested in arming him. But they were beheading to
the capital supports an implication that he understood that those
individuals would be attacking the capital. Later. There's other
statements and evidence that were elicited that also come to that.
So I do think that Justice Department is is at least considering
whether or not that's a potential charges well, and whether or not
they're investigating him.
We don't have any any reason or evidence yet to believe that's the
case. But we are you are talking about criminal potential criminal
violations. Is that right?
That's right. And I'll just say both when I was a prosecutor, and
I'll say now, now that I'm in private practice, I would always counsel
and client that it shouldn't give you any comfort. If the Justice
Department is looking at your actions in the context of a criminal
proceeding that you know whether or not your name is on the file
folder of the investigation or not, as a practical matter.
The Justice Department has a criminal investigation into what it
believes is criminal activity, and it is investigating the former
president's words and actions as part of that, and he should be concerned
about that. And we saw in an interview that the attorney general
gave to NBC yesterday. He said Anyone who was involved in in his
words could be criminally responsible for interfering with the peaceful
transfer of power.
From one administration to the next, he said. We're going to pursue
that. Having said that is former President Trump in any way protected
because he's a former president.
I wouldn't say that he's protected. What I would say is that the
status that he is the former president makes a trial more complicated
because I've created juror issues. There's obviously number of jurors
who would likely have voted for him and supported him. He's very
difficult to find jurors who don't know who he is that separate and
apart from that It also obviously means that any prosecution of the
former president is going to have an impact on the country, and that's
something for the attorney general's away.
I took his comments from the other day to be because they were in
the response to questions about potential charges against the former
president to suggest that he felt that that is those that they would
pursue charges. If they in fact, had the evidence to do so. And just
quickly yes or no if he were to become a candidate for president
again, Could that have a bearing on what the Justice Department does?
No, it just might affect the timing.
Alright. Renato Mariotti, former federal prosecutor. We're going
to leave it there. Thank you very much.