Testimony during the Jan. 6 committee hearings has delved into the former president’s desperate attempts to hold on to power during the final months of his term. Witness after witness has suggested that defeated President Trump attempted to carry out a self-coup — but will prosecutors have the evidence they need to indict a former president of the United States?
Kevin J. O’Brien, a former Assistant US Attorney specializing in white-collar criminal defense, believes prosecution is more likely after White House aide Cassidy Hutchinson’s public testimony. American Reporter asked him to explain in the following Q&A.
Why are the Jan. 6 Committee Hearings important?
The January 6 Committee hearings have been remarkably successful in focusing the public’s attention on the actions of former President Trump, building step-by-step the case against him for attempting to overturn the 2020 presidential election. The noise campaigns that served Trump so well during the Mueller investigation and the impeachment inquiries have been largely stilled.
The hearings are not a legal proceeding, but rather an effort at public education. If, however, as many have suggested, they are designed to lay out the argument for indicting the former president, then it has been critical for investigators to find evidence establishing Trump’s relation to the violent insurrection itself.
What kind of evidence would that be?
On the first day of hearings, Chairperson Thompson called the riot “the culmination of a brazen coup” orchestrated by Trump, and Vice-Chairperson Cheney said the evidence would show Trump “summoned the mob, assembled the mob, and lit the flame of this attack.”
So far, however, Hutchinson’s testimony has provided the most suggestive evidence that Trump and leaders of the insurrection conspired to storm the Capitol on January 6. Since the hearings are not yet complete, observers must wait to see if the Committee can demonstrate even more of a connection. This connection would be crucial for a criminal prosecution.
Without the assault on the Capitol, the plots from inside the White House seem abstract (notwithstanding the unfortunate toll on harassed election officials).
In the early hearings, the Committee focused on plans devised by right-wing law professor John Eastman to block or hinder the counting of official electoral ballots by putting forward self-appointed Trumpian “electors” in violation of the Twelfth Amendment and federal law. While this makes chronological sense, leaving out the insurrection was like doing Hamlet without the ghost.
Hutchinson’s testimony changed the whole arc of the committee’s inquiry.
How else could prosecutors argue that Trump tried to overturn the election?
Another possible connection to the insurrection arises from Trump and Eastman’s repeated efforts to pressure Vice-President Pence, who was constitutionally tasked with opening and counting states’ ballots on January 6, to help throw the election to Trump, which Pence refused to do. Trump’s texts during the riot show his mounting anger at Pence’s disloyalty.
The insurrection arguably was the last stage in Trump’s campaign to pressure Pence to corrupt the counting of the vote. From a prosecutor’s viewpoint, Trump needn’t have “lit the flame of this attack,” to use Cheney’s phrase, for the insurrection to be relevant at his trial. Showing that Trump exploited it for his own unlawful purposes would be enough.
Toward this end, the government could make a powerful opening statement at trial by juxtaposing (1) Trump’s 2:24 p.m. tweet that day telling rioters “Mike Pence didn’t have the courage to do what should have been done to protect our country and our Constitution”; (2) scenes of rioters around the same time chanting “Hang Mike Pence!”; (3) scenes of Secret Service agents around the same time rushing the Vice President and his family to a secure location within the Capitol; and (4) Hutchinson’s testimony that White House Chief of Staff Mark Meadows said, “[Trump] thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”
Do you believe Trump should be indicted?
The current evidence against Trump is sometimes circumstantial and based on inferences. This is common for complicated criminal cases in which questions of intent and knowledge play a key role. But that doesn’t mean there’s no case.
Keep in mind, as well, that the committee isn’t done. Reports of witnesses coming forward with new evidence have been appearing in the news. We can also expect to hear more from the committee on the possibility of witness tampering.
The final hearings presumably will lay out the culmination of Trump’s plot to deter or prevent Pence from carrying out his constitutional duties. That plot came close to succeeding, and it did so in a distinctively Trumpian way. The former president, for all his rants about a stolen election, lacked the nerve to compel the result he wanted personally. But he was more than willing to have others fight for him – in this case, the angry rioters who came looking for Pence on January 6.