The Case Against Donald Trump

Photo: Jim Bourg/Reuters

Tonight in prime time, on televisions across most major networks (except regrettably for Fox News, whose audience perhaps most needs to watch the proceedings), the January 6 Committee will kick off its long-awaited public hearings. While the Committee isn’t there to prosecute a criminal case, this is when it must make its best case to the public that very serious crimes were indeed committed, that Donald Trump and his White House advisors and allies were responsible for them, and that they must be held to account.

The events that led up to and took place on January 6 are complex. The Committee has interviewed over a thousand witnesses and reviewed tens of thousands of documents. As a framework for all of this, it’s helpful to review the specific crimes that the Committee asserts Trump and his cohorts committed, as well as the evidence that exists so far to support their guilt.

The Elements of the Crimes 

The Committee’s vice-chair, Rep. Liz Cheney (R-WY), dropped a bomb earlier this year when she indicated that the Committee was investigating whether Donald Trump, through his actions or inactions, corruptly obstructed the electoral count by Congress on January 6. The statement was notable because it tracked the language of a federal criminal obstruction statute that makes such an action a crime punishable by up to 20 years in prison. Under this crime, prosecutors would need to show three things:

1. “the person obstructed, influenced, impeded, or attempted to obstruct, influence, or impede”

2. “an official proceeding of the United States, and”

3. “did so corruptly.”

In its filings before U.S. District Court Judge David Carter, the Committee also made clear that it believed the Trump White House violated another related statute that makes illegal a “conspiracy to defraud the United States.” To prove this charge, prosecutors would need to show three things:

1. “at least two people entered into an agreement to obstruct a lawful function of the government”

2. “by deceitful or dishonest means, and”

3. “that a member of the conspiracy engaged in at least one overt act in furtherance of the agreement.”

Looking more closely at these elements, it’s clear that two of the elements, which are similar in both statutes, are fairly easy to show. 

On the first potential charge for obstruction, there isn’t much doubt that Trump, Eastman, and others in on the “January 6 strategy” attempted to keep Congress from fulfilling its electoral count, which qualifies as an “official proceeding.” They did this by, among other things, pressuring Vice President Mike Pence to declare Trump the winner or to otherwise delay the official count so that the matter could be sent back to the states. 

On the second potential charge for conspiracy, there isn’t much doubt that a group of advisors inside the White House agreed to work together to obstruct the electoral count and then took steps in furtherance of that agreement, including drafting up action memos, organizing alternate slates of swing state electors, and holding high-level meetings with Pence and his top aides to try and get him to act outside his normal duties.

Nearly all of the testimony and evidence we will hear over the six days of hearings will focus on the third part of each potential charge: the intent of the former president and his allies. In seeking to obstruct the electoral count, did they do so with corrupt intent or deceitful means?

Corrupt Intent and Deceitful Means in the Eastman Plot

The Committee will argue that the Trump White House was prepared to do everything it could to prevent the transfer of power to Joe Biden. To fuel the effort, the Trump campaign embarked on a nationwide disinformation campaign about the election that came to be known as the Big Lie. We’ll hear from witnesses within the prior administration, at the Justice Department and Homeland Security as well as within the Trump Campaign itself, who insisted that claims of election fraud were bogus and false. Trump and his campaign repeated the claims anyway, however, creating and reinforcing a false narrative to justify their later actions.

Justice Department officials will testify about how Trump tried to use the power of that office to cast doubt upon the election by, for example, proposing that state legislatures reconvene to address claims of fraud, even though the Justice Department had determined there were no credible claims of widespread cheating. We’ll hear testimony about how a threat of mass resignations by top Department officials was all that prevented Trump from replacing Acting Attorney General Jeffrey Rosen with a Trump loyalist and going ahead with those plans. 

Underscoring this testimony will be compelling hard evidence, including meeting notes from Department of Justice officials like Richard Donoghue, who wrote that Trump wanted the Department to “just say the election was corrupt” and to “leave the rest to me” and some Republican allies in Congress. It will include recordings of a fateful phone call Trump made to Brad Raffensperger, the Georgia Secretary of State, where Trump said, “I just want to find 11,780 votes, which is one more than we have because we won the state” and threatened Raffensberger with a vague “criminal offense” for not pursuing election fraud claims.

The pressure campaign against then Vice President Mike Pence will also be front and center during the hearings. It’s now increasingly clear that the architect of that plan, Trump attorney John Eastman, knew that it was not a legally supportable position but pursued it anyway—thus providing further evidence of corrupt intent. Eastman admitted so much to a top aide of Mike Pence in the days before January 6, conceding that he wouldn’t be able to get a single member of the Supreme Court to support his extreme position that the Vice President could act unilaterally to overturn the election results. 

Eastman also knew that his plan for “alternate slates of electors” would only work if legislatures in the swing state actually certified those slates before the vote count, otherwise they would be “dead on arrival.” But in the end, Eastman decided it didn’t matter so long as their presence gave some cover to Mike Pence to throw the whole process into chaos. He also wrote to legislators in Pennsylvania advising them to use proportional math to retabulate the popular vote in that state so as to “provide some cover” to the proposed replacement of Pennsylvania’s Biden electors with Trump electors. And as I wrote about earlier, according to Judge Carter’s decision out just this week, the January 6 strategy was cooked up back in December of 2020, involved multiple people including the former president, and was designed to intentionally avoid judicial scrutiny because they knew court review would “tank the January 6 strategy.”

As Judge David Carter wrote in his first order, the Eastman scheme was nothing but a “coup in search of a legal theory” making it “likely” that Trump and Eastman committed federal crimes. It will be the job of the Committee and perhaps ultimately prosecutors to show that it was not just likely, but nearly certain that this was the case.

Evidence of Trump’s Corrupt Intent in the Violent Attack

But what about the deadly riot itself? The leaders of right-wing “militia” style extremist organizations, including the Oath Keepers and the Proud Boys, are now charged with seditious conspiracy, meaning the use of violence to attempt to overthrow the U.S. government. How will this impact the hearings and investigations by the Department of Justice into Trump administration higher-ups?

As I wrote about earlier, there are several, well-documented connections between these radical groups and pro-Trump organizers of the January 6 rallies, as well as with central Trumpworld figures, including Roger Stone, who coordinated and communicated with the accused seditionists regularly. While it is unclear at this time what information or evidence the Justice Department and the January 6 Committee currently possess that might tie the violent seditionists directly to the White House, there is plenty already to suggest that their presence that day was no accident, that they were known by the White House to be a danger, and that Trump’s corrupt intent is unmistakable because of both his actions and inactions that day.

We will hear about how Trump was aware of prior violent incidents in Washington perpetrated by groups like the Proud Boys in the weeks leading up to January 6. Organizers of the rallies have testified that they warned their White House contacts, including Chief of Staff Mark Meadows, about the possibility of violence, but were blindsided when Trump told thousands of rally attendees at the Ellipse to march down to the Capitol anyway. As we will likely soon hear from Mark Meadows’ aide Cassidy Hutchinson, the plan to send the marchers to the Capitol, even though the permit for the Eclipse rally specifically forbade such a march, in fact had already become a key point of discussion among the White House and its Congressional allies such as Rep. Jim Jordan (R-OH) and Rep. Scott Perry (R-PA), who was a big supporter of the idea. The unleashing of the mob on an already explosive situation was no impromptu move by the former president.

We’ll also likely hear about how Trump’s own words that day incited his supporters further, particularly when he tweeted about how Mike Pence was a coward who had failed his duty, enraging the crowd and causing many of them to decide to storm the Capitol and call for his hanging. And we’ll hear about the hours and hours of inaction by the former president, even while his top aides and family members pleaded for him to speak out to stop the attack. Indeed, if Trump did not intend for the rioters to derail and obstruct the electoral count that day, why didn’t he do anything to call them off when so many were begging him to call off the mob? Why didn’t he call in the National Guard to quell the attack?

The Committee understands that this is a lot of information to convey, and that in order to get its message across, it must present what it has learned in a clear and effective manner. It has elected to do so over just six days of televised hearings, indicating it is aware of the media cycle and the American public’s related short attention span. Whether it can succeed and whether the Justice Department investigation ultimately works its way up to the top with charges against Donald Trump remains to be seen.

But whatever the ultimate outcome, these hearings are an important, historical moment. They will help determine whether the rule of law and the peaceful transition of power can endure as fundamental principles that underlie and support our democracy. And that in turn will determine whether we are worthy of the gift our forbearers gave to us, along with a warning: a Republic, if we can keep it.