Two lawyers told CNN “New Day” hosts Brianna Keilar and John Berman Friday morning that securing charges against former President Donald Trump could be difficult.
Daniel Goldman, a former House impeachment counsel, and Jeffrey Toobin, a CNN legal analyst, explained that prosecutors would need to gather facts about Trump’s actions and comments in order to determine what charges to file. (RELATED: ‘One-Sided’: CNN Legal Analyst Takes Aim At January 6th Hearing)
“I just think as a matter of prosecutorial discretion, you can’t charge the President of the United States with trying to overturn an election where he is acting in public, where he has a constitutional authority to tell Mike Pence what to do,” Toobin said.
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“We can have these interesting discussions about what’s a good case to bring, but mostly what we need are facts,” Toobin said. “Like, what happened? We still don’t know exactly what happened. And mostly what we don’t know is what was Donald Trump’s state of mind? Was he really encouraging violence? You know, what were his conversations? There was an allusion early in the hearing to Trump saying, you know, hang Mike Pence, that’s a good idea, he deserves it. But we only heard that secondhand.”
The Jan. 6 select committee held three hearings since June 9, which have been criticized as “illegitimate” by Republicans. After the second hearing Monday, Democrats and liberal media outlets hyped the potential for fraud charges against former President Trump.
Goldman, who is running for the Democratic nomination in New York’s 10th Congressional District, said that prosecutors could go into Trump’s past to find times that he had made a “veiled threat” that prompted his supporters to act.
The FBI reported finding no evidence that the storming of the Capitol building on Jan. 6 was coordinated or the result of a conspiracy, according to Reuters.
“I don’t think we’re ever going to get any evidence saying Donald Trump said to someone I want Mike Pence to be hung or I want Mike Pence to be punished, or I want to overturn the election,” Goldman admitted. “So prosecutors don’t get that kind of evidence, particularly for someone like Donald Trump.”
Former President Trump, Goldman and Toobin did not immediately respond to requests for comment from The Daily Caller News Foundation.
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