The January 6 select committee’s primetime hearing on Thursday night was the culmination of months of buildup over what the panel would reveal about Donald Trump’s actions during the 187 minutes in which he watched his supporters storm the U.S. Capitol from inside the White House, and in many respects, it did not disappoint. There were deeply disturbing and evocative new details about how Mike Pence’s Secret Service agents thought they were going to be killed while protecting the vice-president, as well as revealing outtakes of Trump’s speech the day after the siege, during which he told his daughter Ivanka and staff present, “I don’t want to say the election’s over.” There was also a little treat for everyone at home in the form of video footage showing Senator Josh Hawley running from the same mob he had cheered on earlier that day.
We got the gist of what Trump did during those few hours. So far as we can tell, he was watching Fox News in his dining room, observing the mob do its work, and calling Republicans in Congress to try to get them to prevent the certification while themselves scrambling under a cloud of potentially life-threatening violence.
The account, however, was largely constructed by negative implication. All of the people in direct contact with Trump whose testimony the committee used — like White House counsel Pat Cipollone — appear to have invoked executive privilege and refused to testify about their communications with him. That seems to be why we never got anything as simple as someone saying, “I said to the president X, and in response, he said Y.”
This also appears to be why we heard (again) about all the things Trump didn’t do during those three hours — he didn’t affirmatively help coordinate the law-enforcement response, he didn’t check on Pence, he didn’t go to the briefing room to address his supporters, he didn’t send a tweet to call them off, and so forth — and virtually nothing in the way of affirmative statements from percipient witnesses about what Trump was actually doing and saying. That was one reason why the committee’s presentation of outtakes from Trump’s video on January 6 was so compelling: It was direct, clear, and incontrovertible evidence of what Trump was doing during this period, albeit a very brief portion of it.
The committee’s latest session encapsulated the most impressive and most frustrating aspects of these hearings, which are now officially going to pick back up in September. The panel has excelled at uncovering and connecting dots — discrete pieces of evidence from an apparently massive and intensive investigation.
But the limitations of its tools and its methodology — the panel’s evident inability to fill in the outlines of its account, mostly through no fault of its own — were rarely made plain to the viewer. The result, at the end of this run of hearings, is a vast body of carefully curated information that requires serious attention to the constraints of the process as well as the substance of what was revealed.
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There were real structural limitations to the hearings.
It was evident from the outset that viewers who wanted to get the most fulsome and accurate sense of the relevant events would need to watch the hearings very closely and do some of their own work. The committee had a one-sided anti-Trump design, and there appeared to be little interest on the part of the members in providing potential context, counterevidence, and rebuttals that may not fit their preferred narrative. This was by no means a reason to write off the hearings, which produced a great deal of valuable information, but this structural limitation ultimately proved to be much more significant than I had anticipated.
It was understandable, for instance, that the committee would highlight former attorney general Bill Barr’s rejection of Trump’s claims of election fraud in December 2020, but it was strange to see the account embraced by people who used to be deeply skeptical of Barr. After all, Barr himself peddled ridiculous and false claims about election fraud in the months leading up to the 2020 election, so if he were ever to be a witness against Trump in a criminal case, Trump would presumably use Barr’s own public remarks in his defense in order to support the notion that he had a legitimate reason to doubt the outcome.
Thursday night’s hearing also featured apparent sleights of hand that could occasionally make you feel as if you might be going crazy. Representative Elaine Luria told the public that the chief White House photographer wanted to take pictures of Trump in the dining room, “but she was told ‘No photographs.’” Note the passive construction. By whom? Trump? That is how many people seem to have interpreted Luria’s statement, and it might be factually correct, but we can’t say for sure. (You may be tempted to ask, “Does this really matter?” The answer is that the committee seems to think so.)
There was also a module of evidence designed to corroborate Cassidy Hutchinson’s claim that she was told about a physical confrontation between Trump and his Secret Service protection, except that if you watched closely, the other accounts seemed simply to describe Trump being extremely angry — not the assault by Trump that Hutchinson says she was told about. To puzzle through this, you have to work through a bunch of levels of analysis on your own: Did the committee speak to everyone in the vehicle? (And if not, why not?) Did the members of the detail perhaps decline to go into the specifics of their interactions with Trump, leaving us to reason only from what they told people like Hutchinson at the time? Is this why we should be so concerned about the missing Secret Service communications?
Last but not least, if you are trying to make sense of the legal implications of all this, you have to ask whether anything significant turns on the outcome of the potential dispute about what happened in the car. Probably not, which in turn makes you wonder why you are being both asked to care so much about it and put to the task of sorting it all out without the information you would need.
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The hearings might have looked like a criminal trial, but they did not unfold anything like an actual prosecution.
The hearings had the trappings of a criminal trial, but, in fact, they were more like the sort of presentation that federal prosecutors make when asking a grand jury to return an indictment: a highly curated selection of evidence with little in the way of real guardrails and no cross-examination to test the witnesses’ most potent claims.
The most prominent example of this was probably the line of questioning to Hutchinson about what she was told about the confrontation between Trump and his Secret Service detail, but there were plenty of other episodes that would likely have played out far differently in an adversarial setting, including Barr’s testimony.
To my mind, however, the most glaring and instructive example might have been the testimony of Richard Donoghue, who served as deputy attorney general after Barr’s departure. Donoghue told the panel in his televised appearance that in a call with Trump in late December about supposed election fraud, he made it “very clear to the president what our investigations had revealed and that we had concluded — based on actual investigations, actual witness interviews, actual reviews of documents — that these allegations simply had no merit.” He added, “As the president went through them, I went piece by piece to say, ‘No, that’s false. That is not true,’ and to correct him, really, in — in a serial fashion as he moved from one theory to another.”
Donoghue provided what seems to have been a rather different account when he was asked about the same call behind closed doors in an investigation by the Senate Judiciary Committee. At that time, he said that “the president did the vast majority of the talking” and “we sort of were taking the approach of saying, you know, ‘Yes, we’re aware of it,’ or if we’re not, admitting that, ‘Well, we haven’t heard that one before.’” He told the Judiciary Committee that even before the call, he and the acting attorney general had settled on a strategy that would “be to say to the president we’re doing our job. ‘Yes, sir, we understand. We’re doing our job.’ And try to leave it at that as much as possible.”
No witness at a criminal trial would ever get off the stand without someone asking about the discrepancy between these accounts, and this one actually does matter quite a bit because Donoghue’s testimony was in part supposed to provide evidence that Trump knew that his claims of election fraud were false well in advance of January 6. That theory would be substantially buttressed by testimony from a senior Justice Department official who could say that he systematically and explicitly debunked Trump’s claims to him directly, except that it is not clear that this actually happened.
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Republicans succeeded in seriously hindering the panel.
After the latest hearing, it is now clearer than ever how challenging the committee’s work was made by the antagonism and intransigence of crucial GOP witnesses.
Pence may have incredibly damning testimony about Trump’s conduct, but he has been unwilling to volunteer it. The same is true of Trump’s chief of staff Mark Meadows, who cooperated briefly with the committee, then stopped before testifying, and is now roaming the streets of Washington. Others showed up when asked by the committee but took the Fifth, including Roger Stone, Michael Flynn, and John Eastman.
Cipollone was evidently slow to cooperate, and when he finally did, we got the frustratingly incomplete account that we saw last night, presumably because he asserted executive privilege over the most interesting material: his actual discussions with the president. This also seems to have been why we saw so little from ostensibly important witnesses who briefly showed up — Ivanka Trump, for instance, at one point said she “accepted” what she heard from Barr about the absence of election fraud; Jared Kushner complained about White House lawyers “whining” — and then basically went the way of Poochie.
You can come up with reasons to justify all this, including, perhaps, the importance of ensuring that the president’s direct communications with his top advisers are not routinely disclosed. People are also legally entitled to exercise their right against self-incrimination, but the reality is that, however justifiable the reasons might or might not have been on the part of these witnesses, there remain meaningful holes in the committee’s investigative record.
This matters if you are trying to judge the evidence for a possible prosecution, but in the court of public opinion, we are all free to infer what seems obvious: These people are withholding evidence that would make Trump look far, far worse than he already does.
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It’s clear Trump could be charged with multiple federal crimes. (That doesn’t mean he will.)
There is no real question, based on what the committee presented over the course of the hearings, that Trump’s criminal exposure has materially increased. But the key questions — can, should, and would the Justice Department charge him? — have different answers, and they each require careful attention and caveats.
In the ordinary course, it is not that difficult to get a grand jury to indict someone for even more complicated crimes. Legally, the jurors need to only conclude that the government has established probable cause that the defendant committed a crime — a very low bar.
That is why the answer to the question of whether prosecutors could charge Trump with one or more crimes based on his conduct during and leading up to January 6 is trivially simple: Yes.
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Should Trump be charged? That is much harder.
In practice, the Justice Department sets a firm and higher bar for prosecutors. According to department policy, prosecutors “should commence or recommend federal prosecution” if they believe that they can “probably” get a conviction at trial based on the “admissible evidence.” That means they have to believe that they can convince a jury to unanimously conclude beyond a reasonable doubt that the defendant committed each element of the relevant criminal offense, notwithstanding the possible defenses at trial, which prosecutors must take into account when making their decision.
There are several possible countervailing considerations that prosecutors must also weigh, including whether “(1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.” There is a whole separate body of guidance on those prudential considerations, but let us assume for the moment (as I believe) that these considerations probably weigh in favor of criminally charging the former president if the admissible evidence would support doing so.
That leaves us to assess the potential charges and the evidence presented by the panel. The relevant charges include obstruction of an official government proceeding (the congressional certification of Joe Biden’s election) and conspiracy to defraud the government. Those are the two crimes that the committee teed up and that the judge endorsed in the civil litigation over Eastman’s emails. There are also potential charges that could be directed at election fraud, incitement of insurrection, or seditious conspiracy (the last of which has been charged against members of the Proud Boys and the Oath Keepers).
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At this point, there is a solid case for charging Trump with obstructing Congress and conspiring to prevent the electoral certification.
The panel’s strongest case is that Trump should be charged with obstruction of Congress and a conspiracy to defraud the government based on his monthslong campaign of lies about the election being stolen.
That is because there is now robust evidence that Trump knew his claims of voter fraud were false given the available evidence and the application of common sense, which jurors are supposed to use in weighing evidence. Many people around Trump claim to have told him that there was no real fraud, and there has been no meaningful evidence that Trump was actually trying to figure out the truth — as opposed to shopping around for sycophants and enablers like Rudy Giuliani and Eastman to shore up a predetermined effort to prevent Biden from taking office. It is possible that Trump is delusional or an idiot (or both), but at this point, he can and should be treated like a sane and rational person, subject to all the usual tools of cognitive inference that apply to non-crazy people.
As for whether Trump should be charged based on the efforts spearheaded by Eastman to persuade Pence that he could legally reject the certification, I am somewhat skeptical. Unless someone obtains better evidence, it’s not clear whether prosecutors could establish beyond a reasonable doubt that Trump did not actually believe that these were viable options under the law. Perhaps more to the point, it’s not clear that charging Trump under a theory like this would materially improve the odds of a conviction if you were already comfortable bringing a case against the former president based on his claims of election fraud, which are more demonstrably and objectively falsifiable.
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It remains unclear what Trump knew about plans for violence at the Capitol.
Despite considerable effort, the committee ultimately struggled to directly connect Trump to plans for violence at the Capitol.
A great deal of weight has been placed on Hutchinson’s testimony about Trump wanting to let armed supporters into his speech at the Ellipse, but it is more fraught than people have generally acknowledged. That is at least in part because Hutchinson herself seems to have understood that Trump’s interest was in increasing the size of the crowd for photos, not in deliberately seeding the crowd with people who had firearms.
The question that has hovered throughout the hearings, however, is what Trump knew about the advanced plans of the Oath Keepers and the Proud Boys, including through people such as Flynn, Stone, and Giuliani. Between the work of the committee and the Justice Department, investigators have gathered evidence that indicates (1) that these groups had elaborate and premeditated plans for violence that day; (2) that people like Stone, Flynn, Giuliani, and perhaps even Meadows might have been aware of this; (3) that they might have informed Trump of the plans; (4) that Trump intended to march to the Capitol, which, in turn, might have been intended to facilitate those plans; and (5) that Trump was not interested in stopping the violence once it began unfolding.
For a criminal prosecution, this would be a challenging case to bring given the evidentiary gaps since a fair amount needs to be inferred and assumed. Still, it must be said that some pretty dark scenarios — including that Trump actually knew that these groups planned to violently occupy the Capitol — have become increasingly likely.
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We did not need to be in this situation. The Justice Department deserves some blame for that.
It is understandable that many people would be extremely frustrated by where we find ourselves today. All of this calls out for the most robust and aggressive federal criminal investigation imaginable and for the Justice Department to be much more forthright about what it has been doing.
A year and a half ago, the Justice Department under Attorney General Merrick Garland could and should have begun a serious investigation into the conduct of Trump on and leading up to January 6, along with the conduct of those closest to him in the White House, on his reelection campaign, and in the broader Trumpworld orbit. That appears not to have happened — particularly in light of recent reporting from the New York Times and The Wall Street Journal — and the hearings have concentrated many observers’ attention on the consequences of this evident failure of competence and resolve.
Those observers are right to be angry. If Trump publicly announces that he will run for reelection, any effort to seriously investigate him personally, much less actually prosecute him, will get substantially harder. The Justice Department also has had more tools available all along — though still not foolproof — to gather evidence, including by compelling people’s testimony, immunizing witnesses if ultimately necessary, and potentially piercing the executive-privilege claims that are still being invoked by Trump and those closest to him.
At this point, it is far from clear whether the cumulative effect of the Justice Department’s decisions can be reversed, even assuming that Garland and his senior advisers seriously recalibrate the department’s posture. Some very respectable people think so, but I am not so sure given the state of the evidence, the department’s apparent failure to date to take the most comprehensive and assertive approach to investigating the highest levels of Trumpworld, and, perhaps most important, the political calendar.
Trump could announce his candidacy at any time, and if that happens, all bets are off. There is substantial reason to doubt whether the Justice Department — under its current management — has the wherewithal and the political savvy to seriously pursue Trump in the face of a potential fusillade of attacks on the campaign trial, witnesses who might strategically throw in their lot with Trump, the support of the Republican Party, Republicans in Congress who have few concerns about abusing their oversight authority, and a highly effective conservative-media apparatus. Already, Garland seems to struggle to answer pointed questions in an authoritative and confidence-inspiring way.
One way or another, history will render a verdict on whether Biden and his Justice Department rose to the occasion and met their obligations to our country. More and more, it looks as though the conclusion of the saga will be a deeply unpleasant and unsatisfying one, with extraordinary and unpredictable consequences for the future of the nation.
