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With sentencing of Jan. 6 rioters, prosecuting Trump will be a different challenge

Tuesday’s sentencing of Enrique Tarrio, the former Proud Boys frontman, to 22 years in prison for his pivotal role in planning the Capitol attack, marked a turning point in the department’s sweeping investigation. of Justice on the events of January. 6, 2021.

The sentence ends a series of three federal trials centering on seditious conspiracy, the most serious offense to emerge from more than two and a half years of investigation into the pro-Trump mob who took part in the attack. But it also marked a shift in public attention, from people in boots who breached barricades or smashed Capitol windows to those in suits who concocted plans to overturn the vote count or spread lies about electoral fraud that eventually paved the way for violence. .

The effort to hold the Capitol rioters to account was the largest investigation ever undertaken by the Justice Department and will likely continue for months, if not years, with new indictments.

But the looming trials of former President Donald J. Trump and those accused of helping him try to stay in power will pose a different kind of challenge, testing the resilience and authority of the system. of criminal justice.

The legal action against Trump will likely be a stress test for the country’s commitment to the rule of law at a time of intense polarization and when Mr. Trump is cementing his position as the presumptive Republican Party nominee for the presidency.

As if more tension was needed, Mr. Trump has already shown he intends to make undermining the integrity of the debates a central part of his campaign, saying on Wednesday that he plans to speak out in his own defense. .

In a way, it turns out that prosecuting people — perhaps more than 1,000 of them — for attacking the police or disrupting voter certification was relatively straightforward. This is largely because the assault on the Capitol was a low-key event that can be forensically identified and that in most, if not most, cases of riots there are clear video footage of defendants committing crimes.

More than half of the 1,150 people charged so far in the attack have already pleaded guilty. Of the dozens who faced trial, only two – a former government contractor and a former Broadway singer affiliated with the Oath Keepers militia – were fully acquitted.

But Mr. Trump’s lawsuits — particularly the two lawsuits he faces for election interference, which were filed in Washington by special prosecutor Jack Smith and in Georgia by Fulton County prosecutor Fani T. Willis – will be of a completely different nature. nature. They will be plunged into an unprecedented tangle of legal and political complexities.

Samuel Buell, a former federal prosecutor and law professor at Duke University, said Mr Trump’s election records were legally difficult not only because they involved cross-conspiracies with numerous co-conspirators, but also because ‘they risked hinging on thorny issues like proving intent and determining responsibility for crimes that different people may have committed together.

As if to prove his point, prosecutors handling the Georgia case said Wednesday they plan to call at least 150 witnesses and the trial could last four months. (The judge said it could take eight.)

“These cases are much more nuanced and complicated than the riot cases,” Mr. Buell said.

In the only federal case in Washington, the former president’s lawyers have already promised to file a whole host of pre-trial motions, including one that allegedly involves an untested legal argument that Mr. Trump is immune from charges. because the indictment covers a period during which he served his sentence. as the nation’s commander-in-chief. Citing the unprecedented nature of the case, the lawyers said they also plan to present the charge as a direct attack on Mr Trump by his main political rival, President Biden.

“This is one of the most unique legal cases ever brought in the history of the United States,” John F. Lauro, who is representing Mr. Trump in the case, told the court. the court last week.

Complicating matters will be Mr. Trump himself, who has already been warned by the judge in his Washington case to avoid making out-of-court statements that could intimidate witnesses or taint the jury panel. But within days of the warning, Mr Trump was already testing the limits of the judge’s order – and his patience – by posting messages on his social media site that greatly amplified the criticism others had leveled at his against.

For now at least, Mr. Trump’s two election trials are set to open on March 4, the day before Super Tuesday, when 15 states are due to hold Republican primaries or caucuses. Even if that timeline does eventually change, Mr Trump – who faces two more trials next year related to his handling of classified documents and the quiet payment of money to a porn actress – will most likely have to stop campaigning for a while. long stretches of the spring and this summer, just as his bids for the nomination will reach their crescendo.

If Mr. Trump’s courthouse obligations preclude him from campaigning, he may decide to conduct the campaign at the courthouse. Indeed, there could be two Donald Trumps on the bill when the trials finally begin: one, under the watchful eye of the judges, will have to respect a measure of decorum; the other, on social media or under the gaze of television cameras, may feel less inhibited.

Even though the Capitol riot cases and Mr. Trump’s election prosecutions both converge on the events of Jan. 6, the two are for now entirely separate.

Last week, Judge Amit P. Mehta, who has overseen several riot cases, including the sedition case of Oath Keepers leader Stewart Rhodes, reflected on the separation during a sentencing hearing. penalty for Sandra Parker, a member of the far-right group. .

In a moment of reflection on the bench, Judge Mehta noted how “the power of misinformation” and widespread lies about the election had led defendants like Ms Parker “to believe in something that was truly unbelievable”.

The pervasiveness of such fraud, the judge said, was one of the “untold” stories of the Capitol attack, but that same story will be highlighted in Mr. Trump’s election trials.

Certainly, none of the charges against Mr. Trump accuses him of encouraging or inspiring violence on Capitol Hill. At worst, the Washington indictment claims that when chaos erupted in the building on Jan. 6, Mr. Trump “exploited the disruption” to further his goal of preventing election certification.

The Justice Department has gone to great lengths to seek links between the White House and the rioters and, at least until now, has never publicly linked the boots directly to the suits. It remains to be seen whether prosecutors will find a way to connect their investigation into the Capitol attack with their investigation into Mr. Trump’s attempts to reverse his election defeat.

“We have the fraud charges and the seditious conspiracy charges,” said Daniel C. Richman, a former federal prosecutor and Columbia University law professor. “But what we don’t yet have is a connection between the two, beyond vague inferences and thoughts.”