GM's annoyance notwithstanding
as usual we come away from AMcC knowing more about the legal issues than we did before:
January 6 Committee’s Bid to Prove Trump Criminally Liable for Violence Falls Short
By ANDREW C. MCCARTHY
July 16, 2022 6:30 AM
If anything, the panel has bolstered Trump’s defense rather than undermining it.
The January 6 committee seemed to hit the point of diminishing returns this week. The Democrat-controlled panel is straining to establish that its target, former president Donald Trump, is not just morally and politically but criminally culpable for the deadly Capitol riot, but it can’t make the case. Its evidence of criminal intent is too weak, and its tactic of conflating Trump’s state of mind with the unhinged words of extremists who reacted to his rhetoric is sleight-of-hand.
Plus, Trump has an intent defense: He was trying to ratchet up political pressure on Congress, not provoke a forcible uprising. And the committee is not only ignoring that defense but bolstering it (however inadvertently).
To be clear, I am speaking here narrowly about crimes involving the intent to use force, a necessary element of such offenses as seditious conspiracy, with which the Justice Department has charged several rioters. Trump’s liability for other potential crimes arising out of the events that culminated in the Capitol riot remains an open question. The committee is correct that Trump orchestrated a raucous rally on the National Mall on January 6, 2021. But the evidence that he intended the rally to turn lethally violent, as the committee implies, is slim.
To draw the committee’s conclusion, one must pretend, as the panel mulishly does, that Trump never said, during his speech at the rally that preceded the riot, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” (Memo to the Committee: In real criminal proceedings, which, unlike scripted political presentations, have cross-examination and the right to present a defense, your case gets laughed out of court when you get caught burying the exculpatory evidence. Competent prosecutors confront the exculpatory evidence head-on. Rather than signaling fear of it, they try to persuade the fact-finder that it’s trumped by other, more compelling evidence. Being persuasive involves playing it straight to maintain your credibility.)
The committee’s theory also indulges a presumption of guilt, the opposite of what Trump would be entitled to if charged with a crime. The committee would have you believe that when Trump used common political rhetoric, such as telling people they must “fight like hell” for their country, he meant it literally — whereas, when former community-organizer and “direct action” devotee Barack Obama told his fellow progressives, “If they bring a knife to the fight, we bring a gun,” or Joe Biden told black people that Republicans “want to put y’all back in chains,” they were just employing well-intentioned metaphors.
The committee’s contention is shallow. Searching through Trump’s speech, I found 20 invocations of the word fight. In all of them, it makes sense that Trump was using the word metaphorically to convey the concept of political opposition; and in many of them it would be irrational to conclude that he meant the use of physical force (e.g., his lawyers are fighting, his House Republican allies are fighting, we have to primary RINOs who don’t fight, he fights with the media, we need to fight big donors and big tech). The fact that people got physical after Trump urged them to “fight” does not prove that he intended for them to get physical.
This brings us back to the “dog that hasn’t barked” point I made prior to Tuesday’s committee session. The Justice Department conducts criminal investigations for a living, and has more expertise and legal tools at its disposal than the January 6 committee has. A battalion of DOJ prosecutors had been intensively probing the Capitol riot for months before the committee was even formed. The DOJ has thus far charged over 800 people with crimes related to the riot. Yet, despite all the proof it has amassed (far more than the committee has), the DOJ has not even portrayed Trump as an unindicted coconspirator. To the contrary, prosecutors have fought to preclude riot defendants from using Trump’s rhetoric — both the rhetoric from his speech specifically and the rhetoric he used throughout the fraudulent “stop the steal” campaign more broadly — as a defense. It is not enough to say that the Biden Justice Department has not charged a violent-crime case against Trump. If, as the committee seems to be urging, the DOJ were to reverse course and indict Trump for the riot itself, defendants who’ve already been prosecuted for crimes arising from it would cry foul, and prosecutors would have a lot of explaining to do. So I would not hold my breath waiting for that to happen.
Again, that is not to say that Trump is in the clear. There are potential penal offenses on the DOJ’s radar that don’t hinge on Trump’s being criminally culpable for the riot. I think that there are other problems with those offenses, and that the DOJ would be making a profound mistake if it charged a former president with an iffy, non-violent crime. But that’s a topic for another day.
When law-enforcement officials realize that they can’t make a case because they can’t prove criminal intent beyond a reasonable doubt, the matter is quietly dropped, and we never learn what the investigation turned up. By contrast, the January 6 committee is a political body with an unabashed anti-Trump agenda. So it is doing what pols do when they’ve insisted their adversaries are guilty of serious crimes: substituting smoke and mirrors for the hole in its case and hoping nobody notices.
On that score, Tuesday’s proceeding can be summed up in one snapshot. Committee member Jamie Raskin of Maryland, who partnered with fellow Democrat Stephanie Murphy of Florida in leading the presentation, called attention to Trump’s infamous tweet in the wee hours of the morning on December 19, 2020: “Big protest in D.C. on January 6th. Be there, will be wild!” Raskin then pivoted to an Internet message board frequented by right-wing extremists, where immediately after the president’s tweet, one fanatic had written, “Trump just told us all to come armed.”
There it is . . . the call to violent insurrection!
Except, Trump hadn’t said anything about “coming armed.” In fact, in a real hearing, a judge or an adversary would slam Raskin over a stunt like this. The committee doesn’t have a shred of evidence that the former president was asking anyone to come to Washington armed or to commit violence upon arriving. So instead, the panel projects images of what zealots said in reaction to Trump’s rhetoric on its big movie screen, flashes some blood-curdling video of zealots assaulting police and breaking into the Capitol days later, and invites us to conclude that Trump intended a violent attack, Q.E.D. But that’s not how the criminal law works.
The committee has not only failed to prove Trump had criminal intent to cause violence. It has not even confronted, much less disproved, his intent defense.
What appears to have happened here is that Trump summoned what he hoped would be a boisterous throng to Washington in order to influence Pence and congressional Republicans to execute his strategy for keeping power during the January 6 joint session of Congress. Based on John Eastman’s loopy legal theory, congressional Republicans would object to the counting of electoral votes certified by key states won by Biden (i.e., states that had Republican-controlled legislatures, which Trump hoped to then pressure into substituting slates of Trump electors for the already-certified slates of Biden electors, using his unsubstantiated claims of massive election fraud as a pretext). Pence would then have to sustain these objections and purport to either rule the votes invalid or remand the question back to the state governments for recertification. This plan, which fantasized that virtually all Republicans would toe the line, and that Democrats would meekly roll over and play dead, had zero prospect of success. It was also lawless. But that it was lawless does not mean it was a call to violence.
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ANDREW C. MCCARTHY
The committee is not just failing to refute this intent defense; the evidence presented at Tuesday’s hearing actually supported it.
Raskin and Murphy played portions of Trump’s speech in which he explicitly said that the point of marching to the Capitol was “to try and give our Republicans — the weak ones, because the strong ones don’t need any of our help — we’re going to try and give them the kind of pride and boldness that they need to take back our country.” This, mind you, was after Trump had said the objective was to give Vice President Pence the spine to do “the right thing” by executing the strategy Eastman had devised.
Note that, in prior sessions (including the one at which former White House aide Cassidy Hutchinson testified), the committee implied that, because Trump knew some people in the crowd were armed, he must have intended a violent uprising. But that doesn’t necessarily follow. Remember, we’re talking now about criminal intent, not recklessness. On the other hand, encouraging a “wild” crowd — including some Trump supporters who might be armed — to “make your voices heard” at the Capitol is completely consistent with trying to ratchet up pressure on political officials.
Now, I want to be clear: If the subject at hand were impeachment, rather than criminal prosecution, that would be a different matter. I have long maintained that, without admitting as much, the January 6 committee is conducting the impeachment investigation that House Democrats failed to conduct 18 months ago. What the committee illustrated Tuesday, and what it has shown in its previous sessions (six other ones in recent weeks, and one last year featuring police who were battered by the rioters), is that there were abundant bases for impeaching Trump, removing him from office, and disqualifying him from future office. And since removal was not on the table because the riot occurred just two weeks before Trump’s term ended, there was no reason to rush the impeachment investigation.
That is why many of us at National Review (myself included) urged that the House conduct a thorough investigation and draft articles of impeachment that matched Trump’s indefensible derelictions of duty during the two-month period beginning on Election Day and lasting through the riot. House Democrats didn’t do that, opting instead for an “Incitement to Insurrection” article, which was so poorly conceived and shoddily investigated that it gave Senate Republicans easy resort to the pretext that it was unconstitutional to subject a non-incumbent to an impeachment trial. (Putting aside that this GOP premise was legally dubious, it would have been much more difficult politically for Senate Republicans to ignore a well-constructed case of shocking presidential misconduct.)
It would not be merely appropriate but imperative to impeach, remove, and disqualify a president who recklessly instigated a rally of potentially tens of thousands of people against Congress, particularly when he knew, or should have known, that the rally could turn violent and overwhelm security forces. It wouldn’t matter whether such a president didn’t actually call for or intend violence to ensue. It would especially be Congress’s duty to impeach, remove, and disqualify if the rally-run-amok was the culmination of a course of behavior in which the president, who is sworn to uphold the Constitution, (a) willfully undermined the Constitution’s commitment of elections to state control; (b) willfully undermined the constitutionally mandated process by which Congress accepts and tallies state-certified electoral votes, and thus determines which candidate has won the presidency; and (c) once a riot at the Capitol had broken out, willfully failed to use his manifest influence to have the rioters stand down, protecting the vice president, members of Congress, security personnel, and the public.
Impeachment, of course, pertains to abuses of power that demonstrate unfitness for the privilege of public office; it doesn’t require proof of a penal crime. By contrast, the question the committee pressed this week is whether there are grounds for a criminal prosecution of former President Trump specifically for the riot. Unlike impeachment, a penal crime entails being subject to imprisonment — i.e., the deprivation not of a privilege, but of the fundamental right to liberty. Criminal prosecution is thus a legal process, not a political one. The government must overcome the accused’s right to be presumed innocent by proving every element of the crime, including intent, beyond a reasonable doubt.
In its attempts to prove Trump’s criminal — as opposed to political and moral — culpability for the Capitol riot, the January 6 committee has thus far come up short.
