The Hearing Last Night Was Riveting. But Did It Move the Legal Ball?

Photo courtesy of AP

Many who watched the January 6 hearing last night are asking the same thing: While the hearing was compelling factually and emotionally, what legal impact did it have? In other words, assuming federal and Georgia prosecutors are watching, what were they looking for, and did they see any of it last night?

As I’ve written earlier, the core question here comes down to the former president’s intent around January 6. Did Donald Trump corruptly intend to obstruct an official act of Congress? Did he intend to incite an insurrection, or even worse, to aid or abet seditious conspiracy? There is now strong evidence of this, but prosecutors will be looking at it through the lens of a prospective jury, wondering whether they can get 12 people to agree on Trump’s guilty intent beyond a reasonable doubt.

One way to think about this is to ask the broader question: What precisely was Trump’s intent that day? That’s why the Committee focused on the precise whereabouts of the former president in the White House dining room and what he was doing during those fateful 187 minutes. It doesn’t seem in dispute that he very much wanted the electoral count to be delayed so that the matter could be sent back to the states. In fact, while the riot was raging, Trump spent all his time calling allies in Congress to try to get them to delay the count, rather than acting to help put down the riot by calling in the National Guard or other law enforcement. As the Committee made clear, at any moment, Trump could have taken 60 seconds to walk over to a live mic and told the rioters to go home. He could have called in the National Guard. He could have tweeted to his supporters to stop their assault.

One witness, who had to testify anonymously out of fear of retribution, even spoke of an exchange between Trump attorney Eric Herschmann and White House counsel, Pat Cipollone, around a call from the Pentagon seeking to coordinate a response. “Mr. Herschmann turned to Mr. Cipollone and said ‘the president didn’t want to do anything,’” the witness testified. “And so Mr. Cipollone had to take the call himself.” And as Chairman of the Joint Chiefs of Staff Gen. Mark Milley testified, Trump’s silence and inaction dismayed him. “You’re the commander in chief — you’ve got an assault going on the Capitol of the United States of America and there’s nothing? No call? Nothing? Zero?”

Prosecutors could conclude that the evidence shows beyond a reasonable doubt that, by doing nothing for 187 minutes to quell the attack, Trump intended the insurrection to continue because it served the same end that he wanted to achieve. “He told Mark Meadows that the rioters were doing what they should be doing and the rioters understood they were doing what President Trump wanted them to do,” Committee member Rep. Adam Kinzinger (R-IL) said.

And that intent, prosecutors might conclude, is the textbook definition of acting “corruptly.” As I’ve written about earlier, The Fifth Circuit has defined corruptly as “an intent to secure an unlawful advantage or benefit.” Other courts have said it means having an “improper motive or bad or evil purpose” behind your actions. A jury, after hearing the evidence, likely would go into deliberations with a strong sense that Trump indeed intended to secure his illegal purpose of obstructing Congress and that he affirmatively chose to do so by other means, namely refusing to act to stop a violent mob when he could. It’s as if the fire marshal, who really hated the way his neighbor’s house blocked his views, stood and watched arsonists burn it down instead of demanding them to stop and calling the fire department to the scene.

Trump’s defense team would have to come up with at least some other plausible excuse—enough to raise reasonable doubt—for his apparent dereliction of duty. So far, the only marginal defenses we have heard from Trump, who has been busy rage posting on his social media platform, “Truth Social,” is that the Committee left out the part of his speech where he told the mob at one point to go “peacefully and patriotically” and that he was robbed through a stolen election.

With respect to his statement at the rally, the rest of his Ellipse rally speech was still highly inflammatory and inciting, enough to enrage the mob into action. Trump still told the crowd at the end of his speech to illegally march upon the Capitol, a request that he had secretly planned with top allies to spring upon the crowd. Importantly, as we learned in an earlier hearing, he delivered that request while knowing the protestors were so heavily armed they many couldn’t even make it past his own rally’s metal detectors. And more to the point, once it was clear the mob turned violent and was not acting at all “peacefully and patriotically,” Trump still did nothing to get them to stand down.

And even if were true that Trump believed his own Big Lie about the stolen election, which defies credulity given that, as we learned in an earlier hearing, he began to push the lie long before the election even happened and his own advisors all told him it wasn’t true, that cannot excuse his behavior to allow the conflagration to burn uncontrolled. Nothing in the law permits an aggrieved election loser, even one who sincerely believes his own lies about his loss, to take the law into his own hands by allowing a rampaging mob to help him achieve the result he desires.

This is all part of what the Committee is calling Trump’s “extreme dereliction of duty”—a legal duty to take care that laws are faithfully executed and upon which he, as president, affirmatively and uniquely swears an oath. Every aide around him, as we heard from Cipollone and other witnesses, was begging him to do something. Even his own family members, including his adult children Ivanka and Don Jr., were begging him to act. As Rep. Kinzinger noted, the former president, after learning of the Capitol breach, even resisted putting out a tweet saying “stay peaceful.” That is telling and goes directly to the former president’s state of mind, because even if he believed in the right of the protestors to have their voices heard, the only legal way to do so was by peaceful means. If his intent truly were for the protest to be peaceful, why wouldn’t he at least tweet that to his followers?

As Rep. Kinzinger argued near the start of the hearings last night, Trump not only failed to act, he chose not to act. And as press observers have noted, it is highly damning that Trump did not even act to quell the riot until 4:03 p.m., after it was abundantly clear that the insurrection had failed and that Mike Pence and members of Congress were safe from the mob. The violent crowd Trump had summoned and unleashed on the Capitol could do no more, so Trump finally agreed to ask them to go home, even while praising their actions and telling them they were loved.

Prosecutors are also likely taking note that all of the witnesses who appeared in person or by videotaped testimony were not Trump’s political opponents but his own staff, advisors and family members. Credibility would be key to any prosecution, especially when it comes to determining what was going on inside the head of a potential defendant. If Trump were to argue that he didn’t intend for Congress to be obstructed by a raging mob, and that he didn’t intend to further incite the mob through a tweet delivered at the height of danger to his own vice president, he would run smack into a wall of contrary testimony from others within the White House who were close to him and usually on his side. The January 6 Committee has been showing, methodically and devastatingly, that such a defense is unlikely to prevail and that, at least so far, Trump doesn’t have a single witness willing to come forward with testimony in his defense.

Indeed, the question now is, will any of his co-conspirators such as Mark Meadows, John Eastman, or Jeffrey Clark, be willing to flip and testify against the former president? Federal prosecutors are very likely currently exploring this now, especially after having seized the mobile devices of Eastman and Clark.