Donald Trump can be indicted. Here’s how it should be done.

A second-year law student could indict Donald Trump today. The January 6 Committee has, over eight public hearings and scores of private examinations, offered Trump’s future defense counsel the mother of all government trial memos. It has more than shown “probable cause” for indictment, that a named defendant more likely than not committed all the elements of specific crimes. What comes next in our system is indictment, then discovery, then trial.

Some rightly warn that Trump’s prosecution could generate violence, and will further canonize him before already-devoted disciples. But that will happen anyway. Besides, risks of violence are no reason to avoid prosecuting dangerous cases. Quite the contrary, risks of violence make cases the highest prosecution priority. Violent criminals only stop when stopped, even if it can be scary for ordinary people to stop them.

Far worse, threatening political violence is, literally, textbook terrorism: “[v]iolent, criminal acts committed . . . to further ideological goals.” Terrorists use violence and threats to silence resistance, so they can take what they wish. When fear stops us from doing hard tasks that our country needs, then terrorists win.

Threats of civil war are already here, whether we defend our country. Since appeasing authoritarians does not work, we might as well try to protect the Republic.

There is nothing extraordinary about the criminal processes involved here. Since Rule of Law is the point, processes must move as if any other citizen was the accused. Our federal judiciary handles more and worse every day, 70,000 times or more every year. The District of D.C. is already closing cases involving these very events. Fear is the only obstacle to Trump’s indictment today.

Only grand juries, citizen panels, can approve prosecutor accusations and charge federal felonies. But grand juries hear the prosecutor’s best case, with no defense input required (if sometimes allowed). There is no right to appear, or to tender evidence. Cross-examinations come later, at trial, so conflicting witnesses ordinarily cannot occur. Possible defenses don’t matter constitutionally. Impeachment materials to besmirch accusers won’t show up until the plea offer is rejected, right before trial. Triple hearsay and illegally-obtained evidence come in to grand juries, unlike trial juries.

To secure an indictment in U.S. District Courts, a United States Attorney (more likely an Assistant, an AUSA) presents the government’s favorite details, whether admissible at trial, and asks citizens to aim the government’s machinery at an individual.

If the grand jury returns a “true bill,” the indicted co-defendants will get their discovery packets and lawyers, then file pretrial motions — undoubtedly starting with motions to dismiss. Privileges will be asserted, from testifying and document disclosure and prosecution itself, and whatever else creative defenders think to challenge. These decisions (District then Circuit then Supreme courts) won’t come for a year or more. The case could even die pretrial, depending on what the current Supreme Court holds. Indictment begins a years-long project, which leaves ample time to supersede indictments as changing information requires – just like any other citizen would face after such grave allegations and showings.

More likely, indictments will start a race for government debriefing rooms, as the conspiracies’ lower-hanging fruits break silence in return for future consideration, like time cuts from sentences.

After cooperation agreements dry and guilty pleas get entered, defendants facing death in prison or uncontrollable ego will risk trial. Only then come chances to confront accusers and witnesses. That trial’s direct and cross-examinations of sworn statements that not even Congress can secure will ensure every protection and defense to Donald Trump that the Bill of Rights guarantees us all.

So what if the jury hangs, by not reaching a verdict? Hung juries aren’t unusual. One jury’s deadlock would not vindicate Trump or MAGA, though cultists would shout “exoneration!” again anyway. But MAGA claims victory no matter the reality, just like Trump planned on claiming electoral victory while votes were still being counted. However we proceed, MAGA will keep lying about political witch-hunting, and threaten secession and civil war when its members don’t get their way.

Since all outcomes lead to the same dangers, it does not matter whether Trump is convicted, acquitted, or haunted by hung juries for all his remaining days. It won’t even matter if the stacked Supreme Court refuses to allow prosecution, or forbids critical evidence. If double jeopardy attaches and Trump gets the same process due anybody else, then MAGA and the world learns that U.S. courts will indeed handle serious allegations about anyone, under the rules.

Mr. Garland may already be quietly indicting lower-hanging fruit. Maybe he is running a full racketeering probe, as Rudy Giuliani himself directed against New York’s Five Families. However future superseding indictments might read, Mr. Garland must begin criminal process now, and offer Trump his due process in front of an independent branch of government – and the whole world.

Jay Hurst is a criminal defense lawyer with over 20 years’ experience in federal trial, appeal, and habeas corpus matters. Jay lives in Lexington, practicing only in federal courts across the nation. Reach him at jayhurst@jayhurst.net .