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The question floating over the Jan. 6 hearings: Should Donald Trump be prosecuted?

No U.S. president has ever been indicted on federal charges, but millions of Americans think Trump should be

SHARE The question floating over the Jan. 6 hearings: Should Donald Trump be prosecuted?

Former President Donald Trump makes his way to the stage at a rally at the Adams County Fairgrounds in Mendon, Ill., Saturday, June 25, 2022.

Mike Sorensen, Quincy Herald-Whig via Associated Press

As the sixth congressional hearing into the attack on the U.S. Capitol gets underway Tuesday, the question hanging over the hearings is this: Should former President Donald Trump be prosecuted for his connection to the Jan. 6, 2021 attack?

No U.S. president has ever been indicted on federal charges, but polls suggest (largely along party lines) that millions of Americans think Trump should be, and members of the U.S. House Select Committee investigating the attack have said there is credible evidence.

Public opinion

A CBS News-YouGov poll released Sunday found a 46% plurality of U.S. adults think the Jan. 6 committee should recommend charges for Trump to the Justice Department, based on what they’ve seen or heard from the committee hearings.

The poll found 31% believe there should be no recommendation of charges and 23% believe there should be no recommendation either way.

Attitudes on indicting Trump are highly correlated with party preference. Among Democrats, 80% support charges, compared with 44% of independents and just 8% of Republicans. The poll found 47% say they are paying attention to the hearings “some” or “a lot.”

Another poll pegged support for charges even higher. The ABC News-Ipsos poll released last week found 58% of Americans believe Trump should be charged with a crime for his role in the attack, up from 52% in April.

What committee members have said

Rep. Adam Kinzinger, one of two Republicans on the Jan. 6 committee, told ABC News’ “This Week” that while the committee is not a criminal charges committee, he thinks Trump is “guilty of knowing what he did.”

“I think what we’re presenting before the American people certainly would rise to a level of criminal involvement by a president and definitely failure of the oath,” Kinzinger, of Illinois, said.

Earlier this month, Rep. Adam Schiff, D-Calif., said there is credible evidence for the Justice Department to make a decision.

“Once the evidence is accumulated by the Justice Department, it needs to make a decision about whether it can prove to a jury beyond a reasonable doubt the president’s guilt or anyone else’s,” Schiff told “This Week.” “But they need to be investigated if there’s credible evidence, which I think there is.”

Rep. Bennie Thompson, D-Miss., who chairs the committee, said it’s not their job to make a recommendation about charges to the Justice Department.

Should he be charged?

Those arguing for charging Trump cite the importance of deterring future presidents from trying to stay in office after being voted out while critics warn of the potential consequences of charging a former head of government.

In an editorial for Time, Barbara McQuade, former U.S. attorney for the Eastern District of Michigan, and Chuck Rosenberg, former U.S. attorney and Drug Enforcement Administration chief, wrote that not only could Trump be charged, he should be.

“At the time that Trump allegedly engaged in these offenses, he was the President of the United States, constitutionally bound to take care that the laws be faithfully executed,” they wrote. “Above all others, Trump had a public responsibility to serve the American people. Instead, he pushed baseless lies and conspiracy theories that badly damaged our democracy to advance his personal and political interests. And because the United States holds itself out as a model of democracy, his conduct violated not only his duty to the American people, but also his obligation as leader of the free world.”

Jack Goldsmith, former assistant attorney general during the George W. Bush administration, wrote in an editorial for The New York Times that Attorney General Merrick Garland must decide whether indicting Trump is his decision to make, whether he has enough evidence for an indictment and whether prosecuting Trump is in the national interest.

“It is a judgment call about the nature, and fate, of our democracy,” Goldsmith wrote.

While failing to indict Trump under the circumstances would imply a president is above the law, he wrote, “(i)ndicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. It would be seen by many as politicized retribution.”

House Republican Whip Rep. Steve Scalise, of Louisiana, said at a House Republican leadership news conference earlier this month that the U.S. had moved on.

“There’s some people who want to keep relitigating 2020,” Scalise said. “I think if you look at most families in America, they’re angry about the failures of President Biden and they want to see this Congress start addressing those problems instead of continuing this perpetual hatred of President Trump.”

Rep. Mike Johnson, R-La., concurred.

“The American people lived through all that and they have moved on,” he said. “They’ve moved on to caring about the issues that actually that actually effect their daily lives. The criminals involved in Jan. 6 are being prosecuted.”

Ford pardons Nixon

In 1974, then-President Gerald Ford pardoned disgraced former President Richard Nixon, whom he served under as vice president. Ford later wrote in his autobiography, “I simply was not convinced that the country wanted to see an ex-president behind bars.”

Ford’s pardon was widely condemned, but he believed it was for the good of the country.

“We are not a vengeful people; forgiveness is one of the roots of the American tradition, Ford wrote. “And Nixon, in my opinion, had already suffered enormously. His resignation was an implicit admission of guilt, and he would have to carry forever the burden of his disgrace. But I wasn’t motivated primarily by sympathy for his plight or by concern over the state of his health. It was the state of the country’s health at home and around the world that worried me.”

Other countries have seen their elected leaders face criminal prosecution.

Former French President Nicolas Sarkozy was sentenced in 2020 to a year for illegal campaign financing, former Israeli Prime Minister Ehud Olmert was sentenced to six years in 2014 for accepting bribes when mayor of Jerusalem, and former Italian Prime Minister Silvio Berlusconi was sentenced in 2013 to seven years for having sex with a minor and abuse of power.

The House select committee investigating the Jan. 6 attack on the Capitol will convene Tuesday at 11 a.m. MDT “to present recently obtained evidence and receive witness testimony,” the committee announced. It had been scheduled to be on recess prior to the announcement Monday of a new hearing.