Indicting Trump: It’s time ‘to draw a line in the sand,’ says former US judge

With House committee hearings on the Jan. 6 Capitol riots slated to resume in September, retired federal judge Nancy Gertner joined Boston Public Radio to analyize the potential for criminal charges.

What could criminal charges for former President Donald Trump look like?

Gertner believes that the House Jan. 6 committee has gathered sufficient evidence for criminal charges — but potential charges for Trump could vary widely.

“I think [the Jan. 6 Committee and Department of Justice] have intent,” Gertner said. “I think they have more than just words, I think they have actions.

“There is enough evidence of — for want of a better word — premeditation here, intentionality. [Trump] knew that there was going to be a potential for violence, and knew that there were people who were armed on the Ellipse that day, and knew that it was pre-planned that they were going to go to the Capitol.”

Gertner said that the “final coup de grâce” presented by the Jan. 6 Committee was a draft tweet read by Trump directing crowds to march to the Capitol after his speech at the Ellipse.

“I always thought that [Trump] was going to say, or others around him would say, ‘Well, you know, he got carried away with rhetoric,’” Gertner said. “And you can’t link what happened on the Capitol steps to what he said. [But] you can link what happened at the Capitol to what he said — not just in the minds of the demonstrators, but in his mind, he knew that it would be violent.

“There was this telltale tweet that the Jan. 6 Committee put up about walking to the Capitol, which [Trump] read, but did not send,” she continued. “So he knew there was a plan to go to the Capitol. He knew what his words would do.”

In years past, a Trump indictment would be a clear choice. But in today’s political climate, Gertner isn’t so sure.

Gertner believes that indicting Trump and his colleagues could be difficult.

“I think that the Jan. 6 committee has laid out a case which in any other universe would lead to an indictment. I mean, I was on the bench for 17 years, [and] before that I was a lawyer for a long time,” Gertner said. “In any other universe, if you say, ‘What did [former President] Trump know?’ He knew that his claims of election falsity and fraud were wrong. He knew that. How do we know that he knew it? His lawyers told him that.”

“Clearly, he knew that his claims of election fraud weren’t true. He nevertheless attempted to interfere in Georgia, attempted to set up false electors, even when they also told him that the false elector scheme was wrong.”

Legal analysts are worried, however, that if Republicans sweep the midterm elections, it’s possible that a Department of Justice investigation into Trump could be “shut down.”

“That’s the difference between this and Watergate, because there were reasonable Republicans who were appalled at what [former President Richard] Nixon did,” Gertner said. “If the current configuration of Republicans wins in November, we will have a battle like we’ve never seen before.”

“I'm troubled, by the reverse, sort of the counterfactual: if he is not — if [Trump], and [attorney John] Eastman, [former Justice Department Official Jeffrey] Clark, and others who were involved in this are not charged. What does it say about our rules and our laws? Especially in a situation where we're not at all sure what's going to happen with the Electoral Count Act and changes to our electoral system? You need to draw a line in the sand here and say that what [Trump] did was wrong.”

Gertner is a retired federal judge for the district of Massachusetts, a senior lecturer at Harvard Law School, and a Boston Public Radio contributor.