Trump’s behavior is as outrageous as it is unprecedented in presidential election history. He allegedly instructed his own acting attorney general to state publicly the DOJ was investigating the results in Georgia when there was no evidence of fraud. “Just say the election was corrupt, [and] leave the rest to me,” Trump is reported to have said. He tried to coerce Georgia election officials to “find” exactly enough votes to flip the result.

But while a criminal investigation might be warranted, based on what we know publicly, the reality is that criminal charges are not likely to be successful. And because charging Trump and failing to convict him might do lasting harm, I would not be surprised if DOJ ends up not charging Trump.

This will likely not be a popular position. The precedent Trump set is dangerous and disturbing, resulting in a violent attack on the U.S. Capitol and persistent bad-faith attempts by his supporters to overturn the result. It’s unsurprising that Congress is investigating this matter. But the evidence of Trump’s behavior available to us now—and I emphasize now—does not merit criminal prosecution. That’s not because Trump’s actions were not reprehensible—they were—but rather because what we know he did does not fit neatly within the four corners of federal criminal statutes.