To the Honorable Senator Charles Ellis Schumer, Majority Leader in the US Senate, the Honorable Nancy Pelosi, Speaker of the House, Senators Diane Feinstein and Alex Padilla, and Members of the U.S. House from California:

We, the undersigned, believe that Attorney General Merrick Garland should enforce our laws and protect our democracy by prosecuting serious federal crimes by high-profile Republicans and the radical right.  We are greatly concerned that the Department of Justice has not prosecuted Trump and the other Republican politicians who planned and instigated the insurrection, who committed election fraud crimes to overturn the 2020 election, and brazenly commit contempt of Congress (2 U.S.C. § 192) in trying to undermine the House’s investigation, the purpose of which is to combat disinformation and prevent another insurrection.  America’s claim to be a democracy governed by laws is a fatuous lie if our laws are disobeyed flagrantly with impunity and the people responsible for enforcing the laws refuse to do so. 

Trump flagrantly violated the Presidential Records Act by destroying federal records, and by flushing other documents down the toilet.  He brazenly took other records to Mar a Lago instead of delivering them to the National Archives, and it took months for the National Archives to cajole Trump into disgorging the federal records he purloined, many of which were Top Secret.

Both the 14th Amendment’s insurrection clause and U.S. Code § 2071(b) in the Presidential Records Act are being undermined and written out of the law by the DOJ’s refusal to enforce those laws which were enacted to protect our nation from people who would criminally misuse public office.  Convictions would prove Trump’s unfitness for office.  American democracy hangs in the balance. Congress should urge the DOJ to prosecute these flagrant violations of the law.  

Americans may infer from the DOJ’s failure to prosecute Trump that Trump did not commit those crimes, or that crime pays because we no longer live in a society governed by law. The DOJ’s failure to prosecute such serious crimes undermines citizens’ confidence that the rule of law applies to presidents and other political figures or well-connected people, and ultimately undermines compliance with the law. 

According to a March 12, 2022, Analysis by Chris Cillizza, CNN Editor-at-large, “Trump is probably going to run for president again in 2024. And, yes, he would have a very real chance of winning.”  

In 2024 Trump will be free of the blemish of conviction and may get elected “lawfully” if the DOJ is allowed to effectively repeal the 14th Amendment and the Presidential Records Act by not enforcing them. Our constitutional system’s fate will likely be determined by whether the DOJ fulfills its duty to prosecute Trump and his cabinet members for fomenting the insurrection and for the destruction and for outright theft of presidential documents that might expose the falsity of their aggrieved 2020 election disinformation campaign, and for related crimes, which include census related crimes and corrupt conduct while they were or are in office, such as refusals to obey lawful subpoenas to testify before House committees.

Putin’s war on Ukraine and Putin’s threats of nuclear war highlight the danger of having a President who is not restrained by the rule of law.  Dictatorships under Putin and Kim Jong-un, whom Trump claims as personal friends, suggest what life in the USA might become if Garland’s foot-dragging enables Trump to evade the legal consequences for his acts, become President again, and thereafter finish the job of removing from the Federal government anyone not loyal to him personally.

Federal statutes prescribe serious penalties for crimes that Trump appears to have committed.  18 U.S. Code § 2071(b), entitled “Concealment [of federal records], removal, or mutilation generally), specifies that whoever does what Trump did “shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States.”  

But the DOJ Is not prosecuting these clear violations of the Presidential Records Act.  Why not?  Are the perpetrators too powerful?

Congressman Schiff suggested to Michael Isikoff, Chief Investigative Correspondent for Yahoo News, that the lack of criminal consequences for Trump would create a double standard in American law enforcement. “Because I think, if you or I did that, we’d be under indictment by now,” Schiff went on to say. “In my view, you don’t ignore the crimes that have been committed by a president of the United States. They need to be investigated. You may reach the judgment once you’ve investigated something that the public interest in not prosecuting a former president outweighs the interests of justice. But I don’t think you could ignore the crimes.” 

Schiff says he “vehemently” disagrees with Attorney General Merrick Garland’s failure so far to aggressively investigate former President Donald Trump for his efforts to overturn the 2020 election and other matters, and that the absence of any news reports of Federal grand jury investigations strongly suggests inaction by Garland’s DOJ.  It seems unlikely that Congressman Schiff would make such pointed remarks if he had not himself tried and failed to persuade Garland to investigate and prosecute.

In their Dec. 23, 2021 guest essay in the New York Times, Will Donald Trump Get Away With Inciting an Insurrection, Harvard Law Prof. Laurence H. Tribe, former U.S. Attorneys Donald Ayer, and Dennis Aftergut warned the public that:

"Almost a year after the insurrection, we have yet to see any clear indicators that … an investigation [by Merrick Garland’s DOJ of the principal instigators of the Sept 6 insurrection]  is underway, raising the alarming possibility that the Biden Justice Department may never bring charges against those ultimately responsible for the attack.…  In the prosecution business, interviews need to happen as soon as possible after the events in question, to prevent both forgetfulness and witness coordination to conceal the truth. ... It is also imperative that Mr. Trump be included on the list of those being investigated ... and there is no persuasive reason to exclude him."

On February 22, 2022, a University of Michigan Law School Professor and former United States Attorney, Barbara McQuade, joined the online chorus calling for Merrick Garland to enforce the law by posting online a draft “prosecution memo” detailing compelling grounds for prosecuting Trump under two federal statutes:  [1] 18 U.S. Code § 371 - Conspiracy to commit offense or to defraud the United States, and [2] 18 U.S. Code § 1512(c)(2) - Tampering with a witness, victim, or an informant.  Professor McQuade’s prosecution memo appears to have been adopted by the House January 6 Committee, but not yet by the DOJ.

Additional reasons to indict Donald Trump now:

1. The Mueller report contained compelling evidence that Donald Trump committed obstruction of justice, and other crimes for which the statute of limitations will soon expire, e.g., Trump's attempt to coerce Don McGann to make a false official governmental record, stating falsely that Trump never instructed McGann to fire Muller. See Muller Report Vol II, pg nos. 114-118, text accompanying footnotes 784-826, in which Trump also objected to McGann making notes to file unlike Roy Cohn, who represented Senator Joe McCarthy and high ranking members of the mob. Concerning falsehoods, see, 18 U.S. Code § 1001 (Statements or entries generally), 18 U.S. Code § 1519 (Destruction, alteration, or falsification of records in Federal investigations, etc.), and 18 US Code 2 (aiding, abetting, or counseling a person to commit a felony).
2. Michael Cohen was convicted alone for election-related crimes involving an unindicted co-conspirator who everyone knows is Trump, leaving the inference that Trump is above the law.
3. Trump continues to violate 18 US Code 2 (aiding, abetting, or counseling a person to commit a felony), by openly counseling Steve Bannon, Mark Meadows and others to commit the same contempt of Congress for which Garland’s DOJ indicted Bannon but inexplicably not Meadows.  Despite the January 6, 2022 vote of the House to Recommend Contempt Charge Against Mark Meadows, over three months ago, Attorney General has thus far failed to file a criminal complaint.  What possible justification could there be for appearing to ignore a House vote to refer Meadows for prosecution?
   
   Garland’s inaction allows Meadows to ignore a Congressional subpoena with impunity and in contempt of Congress, potentially encouraging other members of Congress to do likewise, and calls into question the propriety or authority of the Committee to issue subpoenas. Why would the Committee send a subpoena to other members of Congress who appear to have been involved in the insurrection, if the DOJ under Garland will not enforce congressional subpoenas?
4. Trump's telephone call to Georgia's Secretary of State Brad Raffsenberger violated Georgia Code § 21-2-604 (2016) (Criminal solicitation to commit election fraud; penalties), Georgia Code §21-2-566 (2014) (Interference with primaries and elections generally), and Georgia Code § 16-4-7 (2019) (Criminal solicitation), etc. But under Federal statutes, the DOJ too should prosecute these crimes, and the press has been unable to find any evidence that the DOJ has set up the Federal grand juries necessary to compel testimony and obtain documents from unwilling witnesses.  
5. The DOJ should prosecute Trump under the following Federal statutes, as well as many other Federal laws not itemized here: 
   a. 52 USC § 10307, Enforcement of Voting Rights, Prohibited Acts;
   b. 52 USC 20511, Coerce or otherwise influence an election official to falsify voting records;
   c. 18 U.S. Code § 241, Conspiracy against rights;
   d. 18 USC § 1512, Tampering with a witness, victim, or an informant;
   e. 18 U.S. Code § 1519, Destruction, alteration, or falsification of records...
   
   The DOJ’s failure to prosecute increases the risk of loss of evidence and encourages the radical right to continue perpetrating these crimes.
6. Republicans from several states committed Federal election fraud by fraudulently transmitting a document saying Trump won their states to the president of the U.S. Senate, to the archivist of the United States, and to other people heading state or Federal agencies.

Garland’s claim of equal justice rings hollow after failing to prosecute other flagrant crimes by Trump’s cabinet members: 

1. The Interior Department’s inspector general found that Trump’s Secretary of the Interior, Ryan Zinke, had repeated contact with developers about a real estate deal and lied about it to an ethics official while serving as Secretary of the Interior.  But Garland’s DOJ declined to bring charges.
2. On June 27, 2019, the U.S. Supreme Court told the country what we and our clients have long known: that Secretary of Commerce Wilbur Ross provided a false reason for his decision to add a citizenship question to the Decennial Census. The Supreme Court explained that the stated reason for adding a citizenship question—enforcement of the Voting Rights Act—was “contrived,” a term that Merriam-Webster dictionary says is synonymous with, among other words, bogus, false, feigned, forced, mechanical, mock, phony (also phoney), pretended, sham and spurious.  
   
   The Court said that "the evidence tells a story that does not match the explanation the Secretary gave for his decision." (Dept. of Commerce v. New York, 139 S. Ct. 2551, 2575) 
   
   Garland's DOJ doesn't appear to have convened any grand juries to collect evidence or testimony and file appropriate charges, even though the Supreme Court's announced that, in the Supreme Court's opinion, then-Secretary Ross appears to have committed either perjury (18 U.S. Code § 1621), or suborned perjury (§ 1622), and participated in the submission of false documents or false statements (§ 1519) to the US Supreme Court. Why?
3. Former Attorney General William Barr committed perjury during his testimony to Congress about the Mueller report.  A FactCheck.org article posted May 1, 2019, noted that on “On April 10, Barr was before a Senate appropriations subcommittee when Senator Van Hollen asked him about his conclusion in the March 24 memo that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”  The Mueller report demonstrates that Trump committed obstruction of justice. The assertion to the contrary by Barr, an experienced lawyer, claiming that there was insufficient evidence is prosecutable as perjury. [For an incorrect opinion?] Barr also lied on April 10, 2019, when he replied to Senator Van Hollen’s question, Did Bob Mueller support your conclusion?” by saying “I don’t know whether Bob Mueller supported my conclusion.”

Two former Deputy Assistant U.S. Secretaries of State or of the Treasury, Mark Medish and Jonathan M. Winer, published an article in JustSecurity.org summarizing Garland's responsibilities as follows:

Even skeptics about the underlying Russia probe covered in [the Mueller Report] should agree that it is a federal crime to intentionally influence someone to withhold a document from or impede a pending proceeding before any U.S. agency or Congress or to tamper with a witness. …

Failure of the Attorney General and Deputy Attorney General to review this matter and make a formal prosecutorial determination on whether Trump’s actions constitute criminal obstruction would be a dereliction of duty, transmitting a dangerous signal of impunity from the Justice Department. It would amount to saying: A president may never be prosecuted for crimes while in office. An ex-president will then be given a free pass for those crimes after leaving office. Such a free pass invites any ex-president possessing corrupt intent to engage in continuing obstruction, without consequences.

Granting a president carte blanche to obstruct justice is at odds with the rule of law and America’s founding principles which abhorred the arbitrary rule of tyrants. As those over 1,000 former prosecutors said, “We recognize that prosecuting obstruction of justice cases is critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk.” …

The North Star of “institutionalism” must be to preserve and protect the constitutional order from abuse of power that could end up toppling our Republic. Garland should reopen and review the obstruction case against Donald Trump.

If Garland’s inaction persists, he should resign and be replaced before it is too late with someone who has the courage and insight to faithfully and fairly enforce the law.

We, the undersigned, thank you for your consideration of this urgent matter.