The Jan. 6 House Committee has heard dramatic testimony from former White House staff and others about Donald Trump’s relentless efforts to undo the 2020 election — and his encouragement from supporters holding the U.S. Capitol. stormed and determined to achieve his goal. But the big question remains: was it criminal?
Cassidy Hutchinson, an aide at Trump’s White House, added new urgency to the question on Tuesday when she gave explosive new testimony about Trump’s actions before and during the January 6, 2021 uprising. She said Trump had been informed that there were armed protesters were at his morning rally before he took the stage and told them to “fight like hell” at the Capitol. Then he argued with his security guard, she said, trying to keep up with the crowd.
Trump’s aides knew there could be legal ramifications. Hutchinson said White House counsel Pat Cipollone told her that “we will be indicted for every crime imaginable” if Trump had gone to the Capitol that day as Congress confirmed President Joe Biden’s victory. Cipollone said Trump could expose himself to charges of obstruction of justice or cheat the voter count, she said.
Following Hutchinson’s public testimony, the House committee on Wednesday issued a subpoena for Cipollone, saying in a letter that although he had given an “informal interview” on April 13, his refusal to give official testimony their subpoena did necessary.
The Justice Department recently expanded its investigation into the January 6 attack, targeting some of Trump’s allies in Washington and across the country who participated in his plan to invalidate Biden’s victory. But prosecutors have not indicated whether they will bring a case against the former president.
A look at potential crimes and what Congress and the Justice Department could do:
WHAT IS THE EVIDENCE SHOWN?
Witnesses have testified that Trump was repeatedly advised by campaign officials and top government officials that he had lost Biden’s election and that his claims of widespread voter fraud were disconnected from reality.
Still, he pushed through and screamed the false charges that culminated in the Capitol riots.
Still in office, he leaned on the Justice Department to get government law enforcement officers to take up his case. He pressured the states — for example, by asking the Georgia Secretary of State to “find” votes — and Vice President Mike Pence, who chaired the joint session of Congress that day.
Hutchinson testified that Trump said he wanted to remove metal detectors from the area near where he delivered a speech on Jan. 6. He said he didn’t care if the supporters who were going to the Capitol were carrying guns because they weren’t there to hurt him.
Trump took to his social media website Tuesday to deny much of Hutchinson’s testimony, which was based on both her own interactions with Trump and information from others who spoke to him that day.
Were crimes committed by Trump?
He has not been charged, but legal experts believe the testimony, assuming it can be corroborated, will provide prosecutors with opportunities to prosecute.
Federal law, for example, makes it a crime to foment, organize, encourage, or promote an uprising like the one around the Capitol. But that’s a high bar for prosecutors to clear. Trump’s admonition to “fight like hell” could be interpreted as a more general call to action. He was acquitted by the Senate of sedition in his impeachment trial after the uprising.
Still, in February, when a federal judge rejected a Trump request to dismiss conspiracy trials by Democratic lawmakers and two Capitol police officers, Trump’s words “plausibly” sparked the riots. And Hutchinson’s first-hand account of hearing Trump complain about metal detectors suggested he was aware that some supporters were capable of violence, but brushed it off.
A more likely option for prosecution, said Jimmy Gurule, a former federal prosecutor and Notre Dame law professor, would be to pursue a case Trump had conspired to defraud the United States through his wide-ranging efforts to undo and obstruct the elections. the congress procedure whereby the results had to be certified.
That broad statute was cited by the House committee when it claimed in a March legal filing that it had evidence that Trump was involved in a “criminal conspiracy.”
“He perpetuated the big lie. For what purpose? To stay in power and prevent Biden from taking the reins of the presidency,” Gurule said. “It was fraud with the American people.”
Some legal experts say it doesn’t matter whether Trump believes the election was stolen or not. But others say much will depend on the president’s intentions and frame of mind and whether he supported activities he knew were illegal. Although witnesses have testified under oath that they told Trump he lost, it would be difficult to prove what he really believed.
“I can confidently say that any serious federal crime charged here requires evidence beyond reasonable doubt as to criminal intent,” said Samuel Buell, a professor of criminal justice at Duke University.
“Any argument that he doesn’t believe he’s doing something against the law… is still an argument he can make and still something for the prosecution to prove.”
WILL THE DEPARTMENT OF JUSTICE REALLY BRING A CASE?
Anyone can guess that. Congressional hearings have produced dazzling testimony, but the one-sided presentation of facts, with no scope for cross-examination of witnesses, is a far cry from the burden of proof and the limitations of trial in criminal prosecutions.
One of Hutchinson’s more notable stories — that Trump, enraged at being driven to the White House instead of the Capitol on January 6, tried to grab the wheel of his presidential vehicle — was something she heard secondhand. , probably inadmissible to a jury.
There are clear signs that prosecutors are moving beyond the rioters, issuing subpoenas last week to multiple Republican Party chairmen as they investigate a plan by Trump allies to create slates of alternative or fake voters in an attempt to undermine the vote .
Attorney General Merrick Garland, a former federal appeals court judge and observant by nature, has promised the Justice Department will hold violators “at every level” accountable — more than 800 people have been charged so far — but he has not said in one way or another that he is considering a case against Trump.
Some Democrats in Congress have pressured Garland to act. The January 6 committee could itself make a formal criminal referral based on more than 1,000 interviews. The Justice Department should not act on such a reference, but it has pressured the panel to hand over the transcripts of the interviews, as it weighs on making its own case.
A Justice Department spokesman declined to comment.
There is no legal impediment to prosecuting Trump as a former president. As he is no longer in office, the legal advice of the Ministry of Justice that protected him from criminal prosecution no longer applies.
But while it may be difficult for the department to turn its back on a case when the cumulative evidence is beyond reasonable doubt, there are other factors to consider. No former president has ever been prosecuted by the Justice Department, and a criminal case against the already polarizing former president threatens to divide the country even further.
Trump has also laid the groundwork for another presidential run, and the department may want to avoid any perception that it is targeting a political opponent of Biden in the heat of the election.
“It will be,” Buell said, “one of the toughest problems a US Attorney General has ever faced.”