Liz Cheney’s powerful remarks during the January 6 congressional hearing on the insurrection at the United States Capitol — which sounded a lot like a lawyer’s opening statement during a criminal trial — reignited a debate in legal circles over whether the Justice Department could, and should, prosecute Donald Trump.

With a growing body of evidence that Cheney and others say points to criminal acts involving Trump’s efforts to overturn the 2020 election results, Attorney General Merrick Garland may ultimately face an extremely difficult decision as to whether whether prosecuting a former president is in the national interest.

A person familiar with the case told NBC News that there have been conversations within the Justice Department about the far-reaching implications of pursuing a case against Trump, should it happen. So far, no public evidence has revealed that the former president has become a criminal target.

“We will follow the facts wherever they lead,” Garland said in his speech at Harvard University’s commencement ceremony last month. His assistant, Lisa Monaco, has confirmed that prosecutors were examining the legal ramifications for those who participated in schemes to push lists of bogus Electoral College members declaring Trump the winner of states Joe Biden had won.

Filing criminal charges against Trump in connection with his effort to void the election “is very likely going to spark civil unrest, and possibly even civil war,” said Barbara McQuade, NBC legal analyst and former U.S. attorney.

But, she said, “I think not indicting is even worse, because not indicting means you didn’t hold someone criminally accountable who tried to overthrow our democracy.”

Either way, “this is a momentous and unprecedented decision — not as easy as some might imagine,” said Chuck Rosenberg, NBC News legal analyst, former federal prosecutor and former head of Drug Enforcement. Administration.

The contours of a possible criminal case against Trump have been clear to legal experts for some time. A federal judge said in a decision in a civil case in March that Trump “more likely than not” committed federal crimes by seeking to obstruct Congress’ counting of Electoral College ballots on January 6, 2021, citing two statutes: Obstruction of Due Process and conspiracy to defraud the United States.

At the time, a Trump spokesperson called the judge’s claims “absurd and baseless.” Trump has always denied any wrongdoing.

In her opening comments, Cheney sought to expose all elements of what she had previously said amounted to a criminal conspiracy.

“For several months, Donald Trump oversaw and coordinated a sophisticated seven-part plan to nullify the presidential election and prevent the transfer of presidential power,” she said.

As Cheney described, Trump’s alleged misconduct went far beyond allegations that he incited the crowd that stormed the Capitol on January 6. officials to act on these false claims. At key moments, they refused to do so.

Trump “corruptly planned to replace the United States Attorney General in order for the United States Department of Justice to spread his false, stolen election allegations,” Cheney said, and “corruptly lobbied state lawmakers and state legislators.” election officials to change election results.

Trump’s campaign to get Vice President Mike Pence to reject voters in the state and block the certification of the Jan. 6 vote “was illegal and unconstitutional,” she said.

Summarizing Trump’s conduct, she said the public should keep in mind that “the Department of Justice is currently working with cooperating witnesses and has only released a portion of the information it has to date. identified from encrypted communications and other sources”.

This information had been disclosed in various indictments, but by mentioning it in the context of Trump, Cheney seemed to imply that it was relevant to the issue of his guilt.

Many legal experts have said there would be no need to tie Trump to the mobs that stormed the Capitol to indict him. They said there was ample evidence that he was part of a corrupt scheme to annul the election.

“I can imagine an indictment that includes all seven schemes,” McQuade said. “But if the DOJ can prove any of them, that would be enough.”

In other words, Rosenberg said, “Did he conspire with at least one other person to obstruct Congress and thwart the electoral vote count?”

“There are a lot of actions going on that could qualify as a conspiracy to impede election certification,” said Randall Eliason, a former federal prosecutor and current lecturer at George Washington University School of Law. “It was a multi-faceted plot that actually lasted a few months.”

The Capitol riot, Eliason said, “ended up being kind of a useful tool in this conspiracy. Whether or not it was part of the original plan, it certainly became something that moved the plot forward.

As in most white-collar crime cases, experts said the biggest challenge for prosecutors would be proving Trump had criminal intent — that he knew he had lost the election but had still pursued his allegations of fraud.

It’s well established that a president who once suggested that people could inject themselves with disinfectant to deter Covid has taken to odd ideas. (He later said he was “sarcastic.”) Trump said he sincerely believes the election was stolen from him and that all of his statements and actions were made in good faith.

But on Thursday night, the committee presented new evidence from Trump’s own campaign advisers that he had been repeatedly told he had lost and that his allegations of fraud were false.

“You made her daughter say she believed in it,” Eliason said. “If this were to be a trial, that would be the whole story. Can you prove Trump’s mindset?

McQuade and Joyce Vance, also a former U.S. attorney and NBC News legal analyst, said prosecutors could use a legal concept known as willful ignorance or willful blindness, in which a judge can order a jury to conclude that a defendant acted knowingly if the defendant was aware of a strong probability that something was true but deliberately avoided learning the truth.

“A person cannot ignore the probability that a fact is true,” McQuade said.

If the investigation ever reaches the point where federal prosecutors decide they have enough evidence to charge Trump with crimes — and are almost certain they could win the case — another level of decision-making would come into play. , according to legal analysts.

Garland would have to decide whether prosecuting Trump would be in the country’s best interest.

No former president has ever been charged. And a presidential administration of one party indicting the president of another party — no matter how much prosecutors insist the decision was made on the facts and the law — would set an uncomfortable precedent.

“I don’t think we want to be the kind of country where that happens often,” McQuade said.

Vance said she thinks Garland should decide whether “prosecuting Trump is destabilizing the country more than it is fixing it.”

For a time, it seemed Garland had concluded that prosecuting Trump would be a mistake, she said, but “as the evidence got worse and worse, at one point they just crossed the Rubicon and realized, you need to investigate. ”

Vance said she agreed with McQuade, as did Eliason, that the Justice Department should prosecute Trump. Rosenberg said he wasn’t sure.

A possible difficulty is whether Garland would make a final decision on whether to prosecute alone or consult with President Joe Biden, who has pledged to stay out of Justice Department business.

The Justice Department, by tradition, makes criminal indictment decisions independent of the president, but in cases involving, say, US diplomacy or national security, the executive branch can and must weigh in. Biden would have the legal authority to make the final decision on whether to prosecute, but experts are divided on whether he should get involved.

“It’s a fascinating question,” Eliason said. “I feel like the president should intervene. We are talking about this monumental decision. Biden was elected, not Garland. At some point it becomes a political issue, not strictly a legal one.

McQuade disagreed: “That would be a terrible idea. I don’t think you can lock the president. You can give it a whim, but I don’t think you consult it. It undermines this idea of ​​an independent Department of Justice.

If sued, Biden could face a decision of his own: whether it is in the national interest for him to use his power of pardon, as President Gerald Ford did in the president’s case. Richard Nixon.

Nixon resigned from the presidency in 1974 as impeachment loomed, and a federal grand jury was preparing to indict him for bribery, criminal conspiracy, obstruction of justice and obstruction of a criminal investigation.

Ford’s pardon was bitterly criticized at the time, and historians believe it cost him the 1976 presidential election.

But in 2001, at age 87, Ford received the John F. Kennedy Profile in Courage Award.

“I was one of those who spoke out against his action at the time,” Senator Edward Kennedy said. said during the ceremony at the John F. Kennedy Library. “But time has a way of clarifying past events, and now we see that President Ford was right. His courage and dedication to our country allowed us to begin the healing process and put the tragedy of Watergate behind we.”