WASHINGTON – The Jan. 6 House committee has heard dramatic testimonies from former White House aides and others about Donald Trump’s relentless efforts to overturn the 2020 election and his encouragement to supporters who they stormed the United States Capitol determined to achieve their goal. But the big question remains: was it something criminal?
Cassidy Hutchinson, Trump’s White House aide, added a new urgency to the question Tuesday as she offered new explosive testimony about Trump’s actions before and during the January 6, 2021 uprising. reported that there were armed protesters at their morning demonstration before taking the stage and told them they “fought like hell” at the Capitol. Then he argued with his safety detail, he said, trying to go with the crowd.
Trump’s aides knew there could be legal consequences. Hutchinson said White House attorney Pat Cipollone told him “we will be charged with every crime imaginable” if Trump had gone to the Capitol that day while Congress certified President Joe Biden’s victory. Cipollone said Trump could be exposing himself to charges of obstruction of justice or defrauding the election count, he said.
Following Hutchinson’s public testimony, the House committee on Wednesday issued a subpoena for Cipollone, saying in a letter that, although he had provided an “informal interview” on April 13, his refusal to provide a witness in the record made his summons. necessary.
The Justice Department has recently expanded its investigation into the Jan. 6 attack, targeting some of Trump’s allies in Washington and around the country who participated in his plan to invalidate Biden’s victory. But the prosecution has not indicated whether they will file a lawsuit against the former president.
A look at possible crimes and what Congress and the Department of Justice can do:
WHAT HAS THE EVIDENCE SHOWN?
Witnesses have testified that Trump was repeatedly informed by campaign aides and senior government officials that he had lost the election to Biden and that his allegations of widespread electoral fraud were divorced from reality.
However, he advanced, calling out the false allegations that culminated in the riots at the Capitol.
Still in office, he relied on the Justice Department to get government law enforcement officials to take his cause. He pressured states – asking Georgia’s secretary of state to “find” votes, for example – and vice president Mike Pence, who chaired the joint session of Congress that day.
Hutchinson said Trump said he wanted to remove metal detectors from the area near where he was delivering a speech on Jan. 6. He said he did not care if the supporters, who were to go to the Capitol, were carrying weapons because they were carrying weapons. they were not there to hurt him.
Trump visited his social media website on Tuesday to deny much of Hutchinson’s testimony, which was based both on his own interactions with Trump and on information from other people who spoke to him that day.
HAS ANY CRIME BEEN EATEN BY TRUMP?
He has not been charged, but legal experts believe the testimony, assuming it can be corroborated, gives the prosecution avenues to follow.
Federal law, for example, makes it a crime to incite, organize, encourage, or promote a riot like the one that engulfed the Capitol. But that’s a high bar for prosecutors. Trump’s exhortation to “fight like hell” could be interpreted as a more general call to action. He was acquitted by the Senate of a charge of incitement in his impeachment trial after the insurrection.
However, a federal judge in February, in rejecting Trump’s request to withdraw conspiracy demands from Democratic lawmakers and two Capitol police officers, said Trump’s words “plausibly” provoked 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 they removed it.
A more likely option for prosecution, said Jimmy Gurule, a former federal prosecutor who is a law professor at Notre Dame, would be to follow a case in which Trump conspired to swindle the United States through his extensive efforts to overturn the elections and obstruct elections. the act of the Congress in which the results were to be certified.
This broad statute was cited by the House committee when it stated in a March legal presentation that it had evidence that Trump had been involved in a “criminal conspiracy.”
“I was perpetuating the big lie. For what purpose? To stay in power and prevent Biden from taking over the reins of the presidency,” Gurule said. “It was a fraud on the American people.”
Some legal experts say it doesn’t matter if Trump believed the election was stolen or not. But others say it would depend a lot on the president’s intention and mood and whether he supported activities he knew were illegal. While witnesses have testified under oath about telling Trump he had lost, it would be hard to prove what he really believed.
“I can say with confidence that any serious federal crime at the crime level that will be charged here will require evidence beyond any reasonable doubt of criminal intent,” said Samuel Buell, a professor of criminal law at Duke University.
“Any argument he doesn’t think he’s doing something that is against the law … is still an argument he can make and the prosecutor has yet to prove.”
WILL THE JUSTICE DEPARTMENT REALLY BRING A CASE?
This is a guess from anyone. Hearings in Congress have produced startling testimonies, but the unilateral presentation of the facts, with no opportunities for cross-examination of witnesses, is a far cry from the burden of proof and the limitations of the trial in criminal proceedings.
One of Hutchinson’s most startling stories: that Trump, angry at being driven to the White House instead of the Capitol on Jan. 6, tried to get behind the wheel of his presidential vehicle, was something he heard second-hand. , probably inadmissible before a jury.
There are clear indications that prosecutors are moving beyond the rioters, citing citations last week to several state Republican Party presidents in examining a plan by Trump allies to create a list of alternative or fake voters in an attempt to subvert the vow.
Attorney General Merrick Garland, a former federal appeals judge and by nature cautious, has pledged that the Justice Department will hold offenders accountable “at any level” – more than 800 people have been charged so far. – but he didn’t say it in a way. or another who is considering a case against Trump.
Some Democrats in Congress have been pressuring Garland to act. The same January 6 committee could make a formal criminal referral based on its more than 1,000 interviews. The Justice Department should not act on this referral, but has been pressuring the court to hand over transcripts of its interviews while it plans to present its own case.
A Justice Department spokesman declined to comment.
There is no legal ban on prosecuting Trump as a former president. As he no longer holds the position, the legal opinions of the Department of Justice that protected him from criminal charges no longer apply.
But while it may be difficult for the department to move away from a case if the accumulated evidence is demonstrable beyond any 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 runs the risk of further dividing the country.
Trump has also laid the groundwork for another presidential candidacy, and the department may want to avoid any perception that it points to a Biden political opponent in the midst of an election.
“It will be,” Buell said, “one of the most difficult problems any U.S. attorney general has ever faced.”