CRIME OF THE CENTURY: Jan 6 panel makes convincing case
AG Garland has date with destiny as he weighs Trump indictment
In its most anticipated hearing to date, the House Select Committee to Investigate the January 6 Attack on the US Capitol had a high bar to meet.
Expectations for its latest public foray were very high. Few dispute that they were met – and exceeded.
The Select Committee has made a clear and convincing case that ex-President Donald Trump knew what he was doing was wrong, dangerous and likely to lead to violence.
He did it anyway.
His criminal intent was proved beyond a reasonable doubt.
Trump’s actions and omissions before, during and after the deadly insurrection have all the necessary elements of serious crimes.
If the facts and the law support indictment, Attorney General Merrick Garland has a date with destiny.
He must and will rise to the occasion.
In her opening statement at the hearing, Vice Chairman Rep. Liz Cheney could not have been more clear:
“President Trump had a premeditated plan to declare that the election was fraudulent and stolen before election day, before he knew the election results,” she said.
“[He] made the conscious choice to preach, fraudulently, that the election was stolen, to pressure state officials to change election results, to manufacture fake electoral slates, to attempt to corrupt our Department of Justice, to summon tens of thousands of supporters to Washington, knowing they were angry and knowing some were armed, to send them to the Capitol.”
Cheney was laser-focused on the issue of intent, the one most difficult for prosecutors to prove. The evidence presented over the following two hours drove home the point repeatedly.
Cheney came back to this topic in her closing statement, in proposing a resolution to subpoena Trump to testify under oath:
“This is a question about accountability to the American people,” she said. “He must be accountable. He is required to answer for his actions.”
The clear implication was not only that he should testify to the Select Committee, but that he should be “held accountable” in a court of law.
She had wrapped the case neatly without directly mentioning its obvious implications.
Irrespective of whether Trump does testify to the committee, it is now up to the criminal justice system system to hold him to account.
It was a neatly drawn circle and Cheney was the ‘Chief Prosecutor.’
But she was not the only one to refer to crimes being committed.
In a video clip played during the hearing, House Speaker Rep. Nancy Pelosi made the same point:
“They’re breaking the law in many different ways,” Pelosi says. “And quite frankly, much of it at the instigation of the president of the United States.”
Wrapping up the proceedings, Chairman Bennie Thompson made a similar point.
“The committee needs to do everything in our power to tell the most complete story possible and present recommendations to help ensure nothing like Jan. 6 ever happens again,” he said. “But the need for this committee to hear from Donald Trump goes beyond our fact-finding. He is required to answer for his actions.”
Thompson’s meaning was implicit if not explicit: The evidence of crimes means Trump must be prosecuted in a court of law.
From the very beginning of the first Select Committee hearing in June, the panel was clearly targeting a criminal case against the ex-president.
Early on in the first hearing, Cheney cited specific sections of the criminal code in her opening remarks, as I detailed in my previous account of its proceedings:
Seditious conspiracy remains the most serious potential charge.
Now it is up to Attorney General Merrick Garland to decide exactly how the ex-president will be held accountable.
It’s not as if Garland has to start from scratch. The House Select Committee has delivered voluminous evidence for him to use.
In addition, since at least spring the Department of Justice has had a secret criminal Grand Jury working in parallel to the Select Committee.
DOJ remains tightlipped about it, as it is required to do under federal law. But we have learned some of what is going on behind the scenes through intrepid reporting.
Recently, CNN revealed a major development in the proceedings in its scoop Trump's secret court fight to stop grand jury from getting information from his inner circle
“Former President Donald Trump’s attorneys are fighting a secret court battle to block a federal grand jury from gathering information from an expanding circle of close Trump aides about his efforts to overturn the 2020 election,” CNN reported.
It’s clear from this and other media reports that the DOJ investigation of the ex-president’s role in the insurrection is fully engaged. Dozens of subpoenas have been issued to Trump’s inner circle and many of them have already appeared before the criminal grand jury.
The supporting evidence from the House Select Committee just adds urgency and potency to the criminal case. What charges the DOJ finally decides to bring in an indictment remains unclear, but seditious conspiracy is a distinct possibility. It carries a 20-year prison term.
But this is not the only criminal case the DOJ has in progress against the ex-president. There is another even more serious and urgent case in the works.
On August 8, FBI agents arrived at Trump’s Florida home with a search warrant and left seven hours later with 11,000 documents, including over 100 top secret, classified items.
No one would have known about it had not Trump himself started ranting on his Twitter clone Truth Social that the FBI had "ransacked" his house. His allies in Congress immediately took to the airwaves and blasted Merrick Garland and the FBI.
Three days later, the attorney general was forced to make a rare public statement about the matter. This is extraordinary; the DOJ never announces investigations in this way.
In a news briefing at the Justice Department Garland said: “Just now, the Justice Department has filed a motion in the Southern District of Florida to unseal a search warrant and property receipt relating to a court-approved search that the FBI conducted earlier this week.
“That search was of premises located in Florida belonging to the former President. The Department did not make any public statements on the day of the search. The former President publicly confirmed the search that evening, as is his right.
“The search warrant was authorized by a federal court upon the required finding of probable cause.”
As is routine, the feds had to show a judge there was a distinct possibility crimes had been committed in order to get the warrant.
The crimes DOJ specified were shocking: they included violation of the Espionage Act and obstruction of justice. None require possession of “Top Secret” documents.
As has been his practice for decades, the ex-president mounted a legal battle to delay, deflect and distract the public from the real issues of his criminal liability.
After struggling to assemble a team of lawyers, 10 days later he filed a motion before a hand-picked judge to request an independent review of all the documents before the DOJ could investigate them.
Suddenly the obscure legal term "special master" became a topic of national conversation.
Trump won the first round when District Judge Aileen Cannon allowed a Special Master to intervene and temporarily delay the investigation.
But her decision was immediately challenged by the DOJ in the 11th Circuit Court of Appeals.
With extraordinary speed, a three-judge panel of the Appeals Court ruled on Sept. 21 that the Justice Department was entitled to review the classified documents seized from Trump’s property. Ironically, two of the three judges were appointed by the ex-president. Trump’s appeal to the Supreme Court was summarily dismissed on Oct. 13.
The DOJ filed another appeal on Oct. 14 seeking to block the entire Special Master intervention. It is to get an expedited resolution.
Legal experts have been having a field day with this case. Many have said it is a better way for Garland to get to a quick indictment of the former president than the January 6 insurrection case.
First, it is relatively uncomplicated. The ex-president was repeatedly asked formally and informally to return government documents to the National Archives where they belong. He did not comply.
Suspecting that the documents included top-secret material, and that the ex-president was not fully complying with its subpoenas, the DOJ was forced to get a search warrant and find out the truth for itself.
Turns out their suspicions were well founded. The evidence is clear, compelling and, basically, ready for the jury. DOJ lawyers need nothing more than to write up their indictment and file it with the court.
One might think the threat of criminal prosecution would be the worst thing the ex-president has faced recently. But his trouble in civil court may be an even bigger headache for Trump, his family business and his fragile ego.
On the same day the Appeals Court dealt Trump a devastating setback, New York Attorney General Letitia James exploded a bombshell on him.
A civil lawsuit she filed Sept. 21, which has been in the works for over two years, accused Trump, his family and his business of multiple frauds committed over decades.
If James is successful, her case could put the Trump family out of business in New York (its base) and cost it $250 million – a serious calamity even for a self-proclaimed billionaire.
James minced no words in her announcement.
“For too long, powerful, wealthy people in this country have operated as if the rules do not apply to them. Donald Trump stands out as among the most egregious examples of this misconduct,” James said.
“With the help of his children and senior executives at the Trump Organization, Trump falsely inflated his net worth by billions of dollars to unjustly enrich himself and cheat the system. In fact, the very foundation of his purported net worth is rooted in incredible fraud and illegality.”
For someone who lied to Forbes magazine to enhance his standing on its World’s Billionaires List, James’ words were targeted as much at his ego as his criminal enterprise.
Among its other threats to the ex-president, the lawsuit seeks to remove Trump and his children from their roles at the Trump Organization; to ban them from future leadership roles in New York; and to repay $250 million they illegally stole.
Riffing on the title of one of Trump’s ghost-written books, “The Art of the Deal,” James dug the spike even deeper into his fragile ego.
“Mr. Trump thought he could get away with the art of the steal, but today, that conduct ends. There are not two sets of laws for people in this country; we must hold former presidents to the same standards as everyday Americans.”
The detailed list of fraudulent practices cited in the lawsuit is long, comprehensive, clear and convincing.
Besides, in civil court James’ burden of proof is much lower than in a criminal case where a unanimous jury is required to agree “beyond reasonable doubt.”
In civil court, only nine out of 12 jurors need to agree that a "preponderance of the evidence" points to a guilty verdict. It's a much easier case to win and is probably keeping the ex-president awake at night.
Historical legacy assured
Whether the work of the House Select Committee will lead to the first criminal indictment of an ex-president in history remains to be seen.
What is already indisputable is that it has accomplished its primary mission: It has established a broad, deep and comprehensive factual history of the events of January 6 – before, during and after – which will live in infamy.
Future historians will be able to use its voluminous evidence for several chapters in their accounts of American history.
It's a disturbing chapter but it must be told. That is the only way to avoid another insurrection in the future.
Wow, fascinating article Warren! We wait to see what happens next!
On the basis that there is a distinct possibility Trump could cause another uprising if he is convicted of a serious national crime, it might be better to simply prevent him from ever running for office again. Let New York and Georgia continue their efforts. A conviction in the New York case might cause his bankruptcy, and a Georgia some jail time. In either case he would be a ruined man.