By Kenneth Tiven
The 9th and final public hearing of the US Congressional Committee probing the January 6, 2020 insurrection at the nation’s capitol produced compelling information about the culpability of former US President Donald Trump.
This was an echo of the Watergate hearings into President Nixon’s role in the Watergate Burglary 50 years ago: What did the president know and when did he know it.
The story arc wove together testimony and video clips shown in the first eight hearings demonstrating that Trump’s complaint of a “stolen election” was premeditated, concocted before the first votes were counted. House Investigating Committee chairman Bennie Thompson and co-chair Liz Cheney said in opening statements that Trump’s criminal behaviour rested on testimony primarily from multiple Republicans working for Trump. They rejected Trump’s complaint that this is a partisan witch-hunt.
Lacking prosecutorial power, the committee probably will provide its evidence to the Department of Justice which has its own parallel probe underway as part of criminal prosecution of those arrested for the Capitol Hill riot.
The committee voted 9-0 to subpoena Trump for testimony under oath. Trump has used his Fifth Amendment right to refuse to answer in state courts and is likely to do the same if he ever sits before any congressional committee.
As the hearing was underway, the US Supreme Court issued a stinging one sentence denial of Trump’s request to intervene in the case resulting from the FBI seizing classified documents that Trump took to Mar-a-Lago after leaving office. “The application to vacate the (pro-government) stay entered by the United States Court of Appeals for the 11th Circuit on Sept. 21, 2022, presented to Justice Thomas and by him referred to the court is denied.”
The underlying critical point in today’s hearing was that documents finally obtained from the Secret Service revealed agency knowledge of right-wing militia actions intended for the rally in Washington. However, for apparent political considerations, top levels of the protection service declined to take strong action to shut down both the Trump rally and any ensuing attack on the Capitol building.
The Committee suggested it would invite various Secret Service and Trump officials back to discuss if they lied to the committee about what they knew. Missing documents included voice and text messages. The agency had insisted the erasure was routine because the service had given new phones to agents, losing everything from the first weeks of January 2020.
Congressman Adam Kinzinger, a Republican on the committee not running for re-election, described Trump as the central commanding figure from start to finish of the Big Lie. Others pointed out that Roger Stone, a longtime Republican operative, played an outsized role in convincing Trump that he could use the rigged election gambit to stay in office. Stone’s intimate connection to the most violent elements of January 6 was also established. This will be the last committee meeting if Democrats lose control of the House of Representatives in the November election.
Any charges resulting from events of January 6 are independent of Trump’s growing legal problems with the federal document case or criminal and civil suit in state courts in Georgia and New York
This was the first hearing which the committee formally accused Trump of committing crimes. His special place in US history is guaranteed for having been impeached twice (and acquitted twice by the Senate), and accused of a crime or crimes by Congress. He would be the first US president charged with a crime associated with his presidency. Keep in mind that deciding whether something is a crime is not black and white. Different parts of the government use different standards. Congress can issue a criminal referral when it thinks a crime may have been committed. Federal prosecutors, though, are supposed to only charge cases they think they can successfully argue to the jury standard of “beyond a reasonable doubt.” This hearing played out with these possible charges in mind:
Obstruction of an official proceeding of Congress
On January 6, 2021, Congress convened officially proceeding to certify the tally of electoral votes from the states, making Joe Biden president.
Many of the Jan. 6 attackers have been charged with this. Former federal prosecutor Barbara McQuade says Trump broke this federal law by trying to stop lawmakers from certifying Biden’s win. But to prove that, prosecutors will, need to prove intent. The committee has testimony that Trump knew he lost but pushed lies about it anyway.
Video after video showed Trump campaign aides and even former attorney general William P. Barr telling Trump he lost. “I made it clear I did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit,” Barr said in testimony taped earlier this year. Though doing nothing is not a crime, the president’s inaction in this period might be evidence of his intent.
Conspiracy to defraud the United States
Proving this crime requires showing that “at least two people entered into an agreement to obstruct a lawful function of the government, by deceitful or dishonest means.” Trump’s meetings with lawyer John Eastman regarding swapping Trump state electors to replace Biden’s seems to meet this requirement.
This is the most serious crime the Department Justice could charge Trump with and conviction would bar him from ever holding elective offices. It would require connecting Trump directly to the leaders of the mob that attacked the Capitol. Leaders of the far-right militia groups Oath Keepers and Proud Boys have been charged and convicted for this crime. Seditious conspiracy is a rare and serious charge, alleging a forcefully effort to overthrow the peaceful transfer of presidential power.
Trump may have committed fraud by fundraising on the false basis that the election was stolen compounded by the fact he faked having an “Official Election Defense Fund. He raised more than $250,000,000 for something that did not exist. Trump aides testified most money donated went to Trump’s Save America PAC. “If Trump solicited funds for one purpose and knowingly used the funds for another, he could be guilty of wire fraud,” said a former federal prosecutor. The committee made it abundantly clear they believe he knew exactly what he was doing, with an ends justify the means logic he feels entitled to use.
“One of the weird things about all of this,” said Berkley Law Professor Orin Kerr, “is that Trump was doing things which any normal person would have realized was unlawful or would have realized there was no evidence for. So, how do you assess the psychology of Donald J. Trump in terms of what he was thinking?”