Lock him up? The risks and rewards of prosecuting Trump over Jan. 6

The House Jan. 6 committee is publicly laying out a case that former President Donald Trump broke multiple laws as he tried to overturn his 2020 loss in the presidential election, but the only person who can ultimately decide to prosecute him is Attorney General Merrick Garland. Garland said Monday that he is "watching," and "can assure you that the January 6 prosecutors are watching all of the hearings as well."

No president has ever been indicted during or after his term, though Richard Nixon would have been if he hadn't resigned and been pardoned by his successor, Gerald Ford. Jan. 6 committee members say they have uncovered enough evidence to charge Trump with several federal crimes, but indicting the former president would have its own risks in this hyper-polarized era. Should Garland try to lock Trump up?

Do the crime, do the time

If Garland decides to indict Trump on criminal conspiracy charges, that "will very likely spark civil unrest, and maybe even civil war," former federal prosecutor Barbara McQuade tells NBC News. On the other hand, "I think not charging is even worse, because not charging means you failed to hold someone criminally accountable who tried to subvert our democracy." A criminal case, she tweeted, "could be as simple as this: Trump knew he lost the election and pressured Pence to steal it for him. That's conspiracy to defraud US, 18 USC 371, and conspiracy to obstruct an official proceeding, 18 USC 1512."

Garland is a very careful, cautious prosecutor and he will ultimately have to decide whether "prosecuting Trump destabilizes the country more than it puts it upright," adds former federal prosecutor and NBC News analyst Joyce Vance, but he and his team already seem to have shifted from opposing the idea to realizing "as the evidence got worse and worse, at some point they just crossed the Rubicon and realized, you've got to investigate."

"You can only shoot people in the middle of Fifth Avenue so many times before someone is going to arrest you and put you in jail," former government ethics lawyer Norman Eisen tells the Financial Times.

There would definitely be retribution

Trump and his supporters "don't care what you have to say" about the 2020 election, former Trump strategist Stephen Bannon said on his War Room podcast Friday, after the first Jan. 6 hearing. "And I dare Merrick Garland to take that crap there last night and try to indict Donald J. Trump," he added. "We dare you because we will impeach you. We're winning in November and we're going to impeach you and everybody around you." 

This is just posturing

The threats to arrest Trump are just "a new escalation of Trump Derangement Syndrome" prompted by the Jan. 6 hearings, Paul Bedard writes at The Washington Examiner. And now Trump's critics, like NBC contributor Eddie Glaude Jr., have to choose "between two bad outcomes: Violence from his supporters or an end of the rule of law if he's not charged," Brent Baker at the conservative Media Research Center snarked. "Of course, there's a third option: Allow the legal process to play out without political commentators like Glaude weighing in early to try to influence the outcome." 

Lots of Republicans would be secretly relieved

If Garland succeeds in rendering Trump ineligible to run again, Trump's critics "might end up finding out that they've done the Republican Party a great service," Fox News senior analyst Brit Hume said Monday. "Because I think a great many Republicans think they can't win with Trump at the head of the ticket again, they're afraid of his supporters and don't want to come out against him directly, but they'd like him to go away."

It's only fair

One Republican who would be openly happy is Rep. Liz Cheney (R-Wyo.), vice-chair of the Jan. 6 committee. In her opening statement, she argued that throwing the book at Trump is the only fair and just course to take, given that more than 840 of his followers have been charged for their actions on Jan. 6. "As one conservative editorial board put it recently, 'Mr. Trump betrayed his supporters by conning them on January 6th, and he is still doing it," she said.

"Hundreds of our countrymen have faced criminal charges," Cheney noted. "Many are serving criminal sentences because they believed what Donald Trump said about the election and they acted on it. They came to Washington D.C., at his request, they marched on the Capitol at his request, and hundreds of them besieged and invaded the building at the heart of our constitutional Republic."

Garland can't win

"The core dilemma that confronts Garland is this: He came in wanting to depoliticize the department," certainly "a laudable goal, after the way Barr misled Americans about the Mueller report and all the moves Trump made trying to enlist Justice in stealing the election," Mark Hosenball writes at The New Republic. But "how does he best defend democracy? By keeping the department out of partisan entanglements or by following the law wherever it goes?"

"If Garland's efforts to depoliticize the department ultimately lead him to put the former president and his inner circle above the law by never approving the indictment of Trump and his co-conspirators in the attempted coup and the insurrection that followed, then no doubt Garland would have undermined his own efforts by allowing the subversion of democracy," Harvard Law professor Laurence Tribe tells Hosenball. He thinks Garland is "both smart enough and dedicated enough to democracy" to avoid "that tragic end."

"Whatever he decides, the decision will be Garland's alone," Hosenball writes. "No attorney general in our recent history — arguably in our entire history, given that no other former president has fomented a coup against the United States of America — has faced such a momentous decision. The country, indeed the world, will be watching."