She Alone Could Fix It? The Jan. 6 Committee Zeroes in on Ivanka Trump’s Role.

Photo courtesy of ABC.net.au

On Thursday evening, the January 6 Committee issued a letter, not a subpoena, to Ivanka Trump inviting her to speak willingly to them. There is little chance of that happening, of course, so we have to take their letter as something else entirely. This rather remarkable invitation reads instead as a way to educate the press and the public about the state of the investigation and to begin to lay out what’s called a Theory of the Case, which is basically a complete and accurate telling of what has occurred showing that what you have alleged is in fact true. 

The letter to Ivanka Trump is the strongest example yet of this as the Committee’s “case” begins to gel. It breaks its theory into four distinct parts to create a roadmap for the upcoming public hearings as well as any potential criminal referral. 

First, the Committee stated it is “investigating efforts by President Trump to impede the count of certified electoral votes by Congress on January 6, 2021.” But then it curiously lectures Ms. Trump on something of which she is no doubt aware, and it winds up sounding far more like an opening statement for the hearings or an opening argument in a trial than anything else:

“Under our system of government, the people of the states choose who will be President. When the people of each state have spoken, and the certified results of the Presidential election in all the states identify the winning candidate, Congress cannot select a different President by refusing to count certain electoral votes.”

The Committee states that after litigating and losing dozens of election challenges, and after the electors met and confirmed the results on December 14, 2020, “President Trump and his legal team planned to change the outcome of the election by enlisting Vice President Pence…to unilaterally reject certain states’ votes, or to delay the counting of those votes until an unknown future date.” It cites the fact that John Eastman, who came up with the plan, refused to testify and invoked his Fifth Amendment right against self-incrimination. 

The Committee then focuses on one critical moment on January 6, about which General Keith Kellogg testified under oath, when the plan to change the election outcome was openly discussed over the phone between then President Trump and then Vice President Pence while Ivanka Trump was present in the room. The Committee wants her to tell them what she knows about that call and other instances where advisors were imploring that former President Trump not go down the path suggested by Eastman. Notably, however, the Committee already has sworn and unimpeachable testimony from General Kellogg about this conversation, so getting Ivanka to speak about it would be confirmatory but not strictly necessary.

Second, the Committee said it “is investigating President Trump’s response to the attack on the Capitol on January 6th.” I wrote earlier about how federal prosecutors have begun to insert curious language about Mike Pence into January 6 defendants’ plea deals, and the Committee apparently is now taking and using such statements. Specifically, it is now directly citing Trump’s actions toward Vice President Mike Pence as a pivotal moment in the attack. At 2:24pm that day, Trump tweeted as follows:

“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” 

The tweet landed right as the crowds were descending on the Capitol and led to the decision by many of the rioters to storm the building. The Committee provided examples from various defendants who had been charged and arrested:

“Once we found out Pence turned on us and that they had stolen the election, like officially, the crowd went crazy. I mean, it became a mob. We crossed the gate.” 

— U.S. v. Joshua Matthew Black

“Then we heard the news on Pence…and lost it…So we stormed.” 

— U.S. v. Marhsall Neefe and Charles Bradford Smith

“They’re making an announcement right now saying if Pence betrays us you better get your mind right because we’re storming that building.”

— U.S. v. Derrick Evans

Ivanka Trump was the single individual to whom many outside the White House reached out in attempts to get former President Trump to intervene and address the ongoing lawlessness and violence in the Capitol. These efforts included, interestingly, a call from Sen. Lindsey Graham, who was involved in attempts to pressure, possibly illegally, Georgia election officials over the vote counts in that state. General Kellogg, who was in the Oval Office or nearby it, testified that Ivanka Trump made multiple attempts to convince her father to act. He also stated he strongly opposed a live broadcast from the White House because of the tendency of live press events to “get out of control” with the former president. 

By the time Donald Trump finally released a videotaped message, in which he told his followers they were loved and should go home but still failed to condemn the violence, Ivanka Trump reportedly had been urging him to do so for over two hours. There are also apparently draft takes of the videos that were not used, which the Committee has been seeking and will now receive from the National Archives.

Third, the Committee is looking into “whether the President did or did not give any order to deploy the National Guard to respond to the violence of January 6th.” The Committee notes that it has testimony from Acting Defense Secretary Chris Miller, who testified that former President Trump never contacted him at any time on January 6th and never at any time issued an order to deploy the National Guard. This is an important fact because “dereliction of duty” is a phrase the public understands, and as Commander-in-Chief Trump had the power to call in the troops but refused apparently to do so. While he can’t be court-martialed for this (he is a civilian leader not subject to the Uniform Code of Military Justice), it is evidence of his corrupt intent to obstruct the electoral count by Congress.

Interestingly, the Committee does not cite any evidence that Ivanka Trump herself has any personal information about what the former president did or did not do with respect to the National Guard, and it asks only that she “share any information you may have on this topic.” This underscores the notion that the Ivanka Trump letter invitation is really a first draft of a theory of the case, and therefore is far more than just a shot over the bow for her personal cooperation.

Fourth, the Committee is “investigating the former President’s activities and conduct in the days after January 6th, including President Trump’s state of mind during that period and whether the President took appropriate action regarding the continuing threats of violence.” One of the key elements any prosecutor must nearly always prove is the defendant’s culpable state of mind, and that often can be discerned from how they acted not only before and during the commission crime but afterwards. The Committee wisely is focusing on Trump’s post-January 6th conduct to gain insight into his state of mind leading up to and on that date.

The Committee has already asked Fox News’ Sean Hannity to come in for an interview to discuss his numerous text messages to White House staff, including those that advised the former president be kept away from “crazy people” and to stop with the “stolen election talk” so that they “have a clear path to land the plane in 9 days” in reference to Donald Trump’s final days in office. Again, there isn’t any specific evidence cited in the letter that Ivanka Trump was involved in post-January 6th discussions with other White House staff or people like Hannity, but the Committee is laying it out there anyway, again to make clear to others what they already know and what the case theory looks like.

It is clear that the Committee knows it has multiple ways to tell the story of January 6 based on cooperating witnesses who have already testified. If Ivanka Trump refuses to appear or cooperate, as expected, this won’t hamstring the Committee. Based on the facts and testimony the Committee already has, it can already paint a fairly accurate picture of her fielding desperate calls from other Republican officials and pleading with her father over hours to do something. If she decides to remain silent and stonewall, this might actually reinforce the idea in the critical court of public opinion that she and people like Meadows, Eastman, Bannon and Hannity have a great deal to hide.