Will It All Be Down The Memory Hole By Tomorrow?
The consensus is that yesterday’s select committee hearing was a catastrophe for Trump, a catastrophe that brings him one step closer to criminal prosecution for sedition. Sedition is simply defined as “conduct or speech inciting people to rebel against the authority of a state” or “incitement of resistance to or insurrection against lawful authority.” And that pretty much fits every report of what was described in testimony of what happened at the hearing yesterday. Bess Levin entitled her Vanity Fair column It sure sounds like Donald Trump should spend his twilight years in prison! Trump watchers could have said that any time in the last 3 decades… but the case became much stronger yesterday.
Punchbowl reported that the hearing was “unprecedented in the array of accusations leveled at a former president and his chief of staff… a president so seemingly out of control, careening toward a political disaster that still casts a pall over Washington and American politics… Hutchinson painted a picture of Trump as unstable, acting irrationally, completely unable to deal with the fact that he lost the election. It was all an attempt to show that Trump was out of control. And it worked.”
The select committee made progress in its efforts to prove that Trump’s inner circle knew about the potential for violence at the Capitol and did nothing. To the select committee, the violence was the point. This includes during the insurrection itself, when lawmakers were calling and texting Meadows begging for help. Hutchinson testified that she heard Giuliani discuss the Proud Boys and Oath Keepers– two groups linked to violence– before the attack. If the panel can draw a line between Trump allies and those who planned the attack, that’s extraordinarily damaging. Remember: Giuliani and Meadows sought pardons, Hutchinson testified.
David French is a Christian conservative from Alabama, who graduated Harvard Law cum laude who has argued against everything that has advanced progressive America in the last half century. Now a senior editor of The Dispatch, last night he wrote that after being skeptical that the select committee would produce evidence that Donald Trump was directly criminally responsible for the insurrection, the case for prosecuting Trump just got much stronger. He dealt with the free speech objections to prosecuting Trump since “it’s legally quite difficult to hold a politician responsible for the violence of his followers. The First Amendment is broadly protective even of political speech that outright advocates violence. There is (rightly) a very high constitutional barrier to criminally prosecuting any person for allegedly inciting violence. After all, the primary responsibility for a riot rests with the rioters— in the absence of direct command authority (like a general commands his troops), nobody can make a person riot.”
He wrote that Hutchinson “gave the most extraordinary congressional testimony I’ve ever seen. She testified that the president was so committed to walking to the Capitol with his own supporters that he allegedly tried to grab the wheel of his Secret Service vehicle. She painted the picture of a president utterly out of control, a man so committed to preserving his own power that he approved of the riot and believed that Mike Pence deserved to face mob justice. But the most legally significant testimony came in a few key sentences: Hutchinson claims she overheard Trump say about the crowd, ‘You know, I don’t effing care that they have weapons. They’re not here to hurt me. Take the effing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the effing mags away.’… Hutchinson’s sworn testimony closes a gap in the criminal case against Trump, and Trump is closer to a credible prosecution than ever before.”
Was the riot something that Trump did not anticipate and did not intend? Any criminal indictment of Trump would be complex and detailed, but at its heart would be a relatively simple story, one that goes like this:
First, Trump summoned the mob to Washington. While Trump is hardly the only organizer of the January 6 rally, he did explicitly call his supporters to Washington, and he did so in a way that implied mayhem. On December 19, 2020, he tweeted, “Big protest in D.C. on January 6th. Be there, will be wild.
Second, he knew the mob was armed and dangerous. This is Hutchinson’s key testimony. If her claims are true, he was so confident that the mob intended him no harm that he wanted to remove the “mags,” a key element of presidential security. He didn’t just know the mob was armed, he wanted it to be armed.
Third, he not only exhorted the mob to “fight like hell” and march on the Capitol, he reportedly attempted to lead it himself. Renato Mariotti, a former federal prosecutor, noted that Trump’s alleged attempt to wrestle the steering wheel of his SUV away from his driver “would be evidence of Trump’s state of mind when he engaged in earlier actions.”
Under this theory, Trump’s efforts would show that the attack on the Capitol was unfolding as he intended, and his own security was thwarting his effort to lead the mob.
Yet this allegation is ancillary to the main claims against Trump. Even if he didn’t try to commandeer his vehicle, he still plainly and clearly exhorted a mob he allegedly knew was armed to march on the Capitol.
Fourth, Trump further inflamed the mob while the Capitol attack was underway. One of the most compelling moments in previous hearings was the video evidence that the crowd “surged” immediately after Trump tweeted (during the heat of the fight) that “Mike Pence didn’t have the courage to do what was necessary.”
In light of this evidence, Trump’s admonition that the mob march “peacefully and patriotically” looks more like pro forma ass-covering than a genuine plea. It was a drop of pacifism in an ocean of incitement…
These words render Trump’s admonition to “fight like hell” and his warning on January 6 that “you will never take back our country with weakness” even more ominous in context. Trump was not a man trying to stop a riot. The evidence continues to grow that he was instead stoking violence and inflaming the mob, all while doing the bare minimum to establish some degree of plausible deniability.
Criminal charges require both evidence and political will. The evidence against Trump continues to mount, both in Washington, D.C., and in Georgia, where there is substantial evidence supporting both federal and state charges for his effort to threaten and intimidate Georgia Secretary of State Brad Raffensperger to “find 12,000 votes.”
For law enforcement to indict a former president (and perhaps the frontrunner for the 2024 GOP nomination) would set a grave and potentially dangerous precedent. But there is another precedent that is perhaps more grave and more dangerous— deciding that presidents are held to lower standards of criminal behavior than virtually any other American citizen.
I don’t know if Trump will face criminal indictment, but after Cassidy Hutchinson’s courageous testimony, the case for prosecuting Trump is stronger than it's ever been before.
Judd Legum also addressed Trump’s criminal culpability after the hearing, pointing to several ways prosecutors could go, starting with the most likely avenue: Solicitation to commit a crime of violence (18 U.S. Code § 373). “Trump,” he wrote, “never made it to the Capitol but the crowd followed his instructions and marched on the Capitol. Many of them committed acts of violence. It was always clear that Trump was morally responsible for the events of January 6, which were all based on Trump's lies about election fraud. But prior to Tuesday's testimony, under the Brandenberg standard, the known facts made it unlikely that Trump could be held legally responsible under the theory of inciting violence… [T]here is now evidence that Trump knew that many people in the crowd were armed and intended to hurt people. And that he directed to those people to march to the U.S. Capitol. That evidence makes it conceivable for prosecutors to prove that Trump's words were ‘directed at inciting or producing imminent lawless action’ and ‘likely to incite or produce such action.’ In other words, Trump intended to incite the armed mob to violence.”
Another line of prosecution would be Obstruction of Congress (18 U.S. Code § 1505)— “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of’ Congress, violates federal law… Whether or not Trump is criminally responsible for that hinges, in part, on whether he incited the violence. If Trump intentionally incited the violent mob, it is much easier to argue he was involved in the obstruction. Hutchinson's testimony that Trump knew the crowd was armed and that he intended to join them at the Capitol is again relevant. This charge is slightly harder to prove because, in addition to demonstrating that Trump incited them to violence, prosecutors would also have to prove that he intended for the violence to obstruct Congress' work. It's a substantial challenge but it's a case that is much easier to prove with Hutchinson's testimony. Other potential charges against Trump include seditious conspiracy (18 U.S. Code § 2384) and conspiracy to defraud the United States (18 U.S. Code § 371). Conspiracy, however, requires corrupt intent… [P]rosecutors would likely need to prove that Trump knew that his claims of election fraud were false but pursued actions to maintain his office anyway. There was evidence presented in earlier hearings that Trump was told by advisors that his theories of fraud were meritless. But whether Trump accepted what he was being told is another issue. Evidence of Trump's state of mind about the fraud claims could be provided by other witnesses but was beyond the scope of Hutchinson's testimony.”
Bret Stephens is another conservative Republican NY Times columnist. Yesterday’s column asked if the select committee will finally bring down the cult of Trump. His case isn’t so much about charging Trump with crimes as it is steering “some of the Trump faithful toward the kind of cult deprogramming they so desperately need… Maybe this is where the cult of Trump will begin to crack. Margaret Singer, a clinical psychologist who studied cults, noted that among the ways cults succeeded was by creating ‘a closed system of logic’ and belief. That, of course, has always been essential to Trump’s messaging. Either you love Trump or you are an enemy of the people. Either you want to Make America Great Again or you hate America. Either you accept that Trump is always right, even when he contradicts your deepest values— or when he contradicts himself— or you are deficient in loyalty to him and hatred of his enemies. Either you stick with Trump or you’re a Republican in name only, a RINO, and we know what Trump loyalists like Missouri’s Eric Greitens plan to do with RINOs. All this was central to the Trump playbook. But after Tuesday, the threat of a legal indictment has become very real. The president may indeed be liable for seditious conspiracy, especially if he tried, via Meadows’s calls to Roger Stone and Michael Flynn, to reach out to extremist groups. To Trump’s supporters, his name was all but synonymous with their sense of America. They saw in him a proudly raised middle finger to progressives who found more to fault than praise with the country. Now it doesn’t entirely compute. I doubt there will be any sort of moment when the Sean Hannitys and Laura Ingrahams of the world will tell the faithful: We were wrong; we made an idol of the wrong man. But there may be a quiet drifting away. In a moment like this, that might be just enough.” Stephens wrote that he’s starting to think the hearing might start driving some Trumpets away from the cult leader, “if not with his most fervent loyalists, then at least with a critical mass of his voters.”
Whether Biden’s weakly-led Department of Justice prosecutes Trump remains to be seen but Dan Balz wrote last night that Hutchinson’s testimony threatens to further weaken Trump politically, “despite the hold he has retained on much of the Republican Party’s base. More Republicans will be asking themselves if this is the person they want as their nominee in 2024. Taken as a whole, it was devastating in the extreme. Trump’s presidency and its aftermath— his actions in office and his perpetuation of the lie that the 2020 election was rife with fraud and therefore stolen— have left many Americans without the ability to be shocked or surprised, whether through fatigue or mere disinterest. In measured and careful language, Hutchinson punctured that indifference. Rarely have Americans heard such descriptions of the country’s highest elected official, descriptions made more powerful because they came from a 25-year-old who had served the president loyally but who on Tuesday acted courageously in service to the country instead.