The usual problem with a prosecution like this would be proving that Trump had the necessary mens rea, in other words, that he knew that these were federal records and that he knew that it was illegal to tear them up. In most cases, you have to prove a defendant had the required criminal intent through circumstantial evidence. Not here. Trump was repeatedly warned that tearing up documents was illegal, both by White House counsel Don McGahn and by his first two chiefs of staff, Reince Priebus and John Kelly. So there is no question whatsoever that Trump knew his behavior violated the law. In fact, we have Donald Trump’s own word for it.

You’ll recall that Nancy Pelosi ripped up a copy of Donald Trump’s speech after his 2020 State of the Union address. Trump, mistakenly, thought the copy he handed Pelosi was a federal record and he didn’t take kindly to this, telling reporters during a press gaggle on February 7, 2020, “Well, I thought it was a terrible thing when she ripped up the speech. First of all, it’s an official document. You’re not allowed—it’s illegal what she did.” You will never, ever see better proof of criminal intent than that…

Prosecutors shouldn’t consider the political ramifications of their charging decisions but this one has the added bonus of being relatively uncontroversial. Prosecuting Trump for incitement on Jan. 6th would be a political nightmare for all kinds of reasons. By contrast, even Trump’s most radical supporters can’t mount an indignant, impassioned defense of Donald Trump’s refusal to stop illegally tearing up documents. Especially since it’s too obviously true.