Justice Department examines Trump’s conduct in Jan. 6 probe

New reports indicate that the Department of Justice is investigating former President Donald Trump’s actions as part of its larger criminal probe into the Jan. 6 attacks on the U.S. Capitol. Former federal prosecutor Renato Mariotti joins Judy Woodruff to discuss.

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  • Judy Woodruff:

    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 6 attack on the U.S. Capitol.

    To help us understand what all this could mean, I'm joined by former federal prosecutor Renato Mariotti.

    Renato Mariotti, welcome back to the "NewsHour."

    So, based on everything you have read, what does it appear to you that the Justice Department is looking at with regard to former President Trump?

  • Renato Mariotti, Former Federal Prosecutor:

    So there was a scheme that was hatched, which I think has been referred to in the media as the fake elector scheme, by which individuals who were 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 have — 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 e-mail conversations. So my understanding, based on what we — reports have shown, is that the Justice Department believes that that fake electoral scheme constitutes a crime.

    And they're investigating the actions and statements of former President Trump with his advisers regarding the implementation of that scheme in the United States Senate. Particularly, it relates to 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.

  • Judy Woodruff:

    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 6 Committee hearings.

  • Renato Mariotti:

    That's right.

    I mean, I think if we look purely at what came from the January 6 hearings, the criminal statute that really stands out to me is criminal incitement. 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, and in a violent manner. And the question has 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. However, some of the testimony, particularly of Cassidy Hutchinson, where she talked about, for example, the former president being aware that the crowd was armed, saying that they would not — were not interested in arming him, but they would be heading to the Capitol, supports an implication that he understood that those individuals would be attacking the Capitol later.

    There's other statements and evidence that were elicited that also come to that. So I do think the Justice Department is at least considering whether or not that's a potential charge as well.

  • Judy Woodruff:

    And whether or not they're investigating him, we don't have 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?

  • Renato Mariotti:

    That's right.

    And I will just say, both when I was a prosecutor and I will say now — now that I'm in private practice, I would always counsel a 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 — 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.

  • Judy Woodruff:

    And we saw in an interview that the attorney general gave to NBC yesterday, he said anyone who was involved, 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?

  • Renato Mariotti:

    I wouldn't say that he's protected. What I would say is that the status that he's the former president makes a trial more complicated, because of how it create juror issues.

    There's obviously a number of jurors who would likely have voted for him and supported him. It's very difficult to find jurors who don't know who he is. But 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 to weigh.

    I took his comments from the other day to be — because they were in response to questions about potential charges against the former president, to suggest that he felt that that is — that they would pursue charges if they in fact had the evidence to do so.

  • Judy Woodruff:

    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?

  • Renato Mariotti:

    No. It just might affect the timing.

  • Judy Woodruff:

    All right, Renato Mariotti, former federal prosecutor, we're going to leave it there.

    Thank you very much.

  • Renato Mariotti:

    Thank you.

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