The First January 6 Committee Hearing

June 9, 2022

The First Hearing

We can all exhale. The January 6 committee outdid itself tonight. They avoided political theater. It was a tight presentation of key facts and compelling evidence that exceeded my expectations (even though I’m a huge fan of Tim Heaphy, my former Obama-era U.S. Attorney colleague, who heads the committee’s staff). We’ll have to wait to see if people who weren’t already convinced of the former president’s culpability watched the hearing and were persuaded. It certainly gave DOJ reason, if it needs any at this point, to investigate the former president.

If this first hearing didn’t blow the roof off the House (as Maryland Rep. Jamie Raskin had promised), it let a few gusts of wind in. Liz Cheney dropped a lot of bombshells. And there are at least five more hearings to go.

There’s a lot to reflect on and I won’t try to rehash it all. But I do want to share a few thoughts with you, perhaps things you won’t see elsewhere as there’s a lot of excellent analysis going on.

·      Chair Bennie Thompson says the committee must do more than just look backwards because the effort to undermine our democracy is still underway. Truer words.

·      The committee came out and said it: Trump unleashed the mob and then he refused to recall it. For months, people have been hedging their bets and dancing all around it. But the committee didn’t mince words. It was refreshing, almost a relief, to hear them bluntly accuse the former president.

Liz Cheney characterized the evidence this way: “Trump’s intention was to remain president of the United States despite the lawful outcome of the 2020 election and in violation of his constitutional obligation to relinquish power.” She said there was a sophisticated 7-part scheme to overturn the election and hold onto power. We’ll learn more about the details in the coming hearings, but the committee took it straight to Trump, with Cheney (metaphorically) sticking a dagger in his heart.

·      Willful Blindness: Did Trump know he’d lost the election or did he honestly believe he was a victim of fraud? It’s important, because if he really thought he’d won and was trying to pursue an honest victory, the situation looks different.

The committee dismissed any notion that Trump could have reasonably believed that tonight. Cheney said both Trump’s data experts and his wingman-attorney general told him that there was no evidence of fraud. Or as Barr himself put it so succinctly, Trump’s fraud allegations were “bull shit.”

This matters because of a legal doctrine called “willful blindness,” which says a defendant can’t continue to maintain he didn’t know something — in this case, that Trump didn’t know he’d lost the election — if he’s aware of the high probability it’s true and doesn’t take steps to confront that evidence. If there is sufficient evidence, willful blindness can be used to establish a defendant’s knowledge of a fact that’s essential to conviction even when a defendant claims he didn’t believe it.

What about Trump and knowledge he’d lost the election? Hearing it from your attorney general, a man who’d backed you up through misrepresentations of the Mueller Report, among other misdeeds, would seem to qualify. Even Ivanka was compelled, saying she respected and believed Barr when he said fraud did not taint the outcome of the election. Trump’s continued insistence that he’d won, without confronting the credible evidence it wasn’t true, puts prosecutors one step closer to having the evidence necessary to bring criminal charges.

·      Willful blindness is particularly important to Georgia, where Trump alternately threatened and cajoled Secretary of State Brad Raffensperger, who will reportedly testify in person later in the hearings, to “find” him 11,780 votes. That was the precise number Trump needed to beat Biden in Georgia. It seems almost too obvious to bear repeating, but if you know you’ve lost, and you ask people you think are on your side to manufacture enough ballots to let you win, then you’re engaging in criminal conduct.

·      Cheney concluded her comments by saying DOJ was working with cooperating witnesses but has only revealed some of the encrypted communications they’ve been able to see as a result. I did a double take at that point. She seemed to be saying DOJ is conducting a criminal investigation that reaches into Trump’s inner circle, the only reason you would get evidence like this from cooperating witnesses would be if you were running an investigation. Cheney seemed to say exactly what Merrick Garland has been trying to avoid acknowledging or denying.

The context for her comments identified a specific conspiracy point that’s worth keeping in mind: the late-night meeting at the White House that included Sidney Powell, Rudy Giuliani, and Mike Flynn meeting directly with Trump, alone. Cheney said “dramatic steps” including seizing voting machines and rerunning elections were discussed and the meeting only ended when Trump’s staff got wind of it. An hour later, Trump let loose with his, be there—will be wild tweet. There is plenty more conduct in conspiracy territory, but here there are steps being discussed that are clearly illegal.

·      There’s likely more coming: Cheney said that Rep. Scott Perry of Pennsylvania and "multiple other Republican congressmen" sought pardons from Trump after Jan. 6, 2021. Prosecutors call that consciousness of guilt. Every member of Congress the committee asked to, refused to testify. Prosecutors are prohibited from commenting on a defendant’s failure to testify in a trial but that’s not the case here. The committee can draw all the inferences it wants to from people who took an oath to uphold the Constitution and then tried to tear it up.

·      Will we see DOJ prosecute? It’s still hard to crystal ball, not because we can’t find criminality in the evidence but because of the specific guidelines DOJ follows when it decides whether to indict a case. Here’s the actual language from the federal principles of prosecution (the federal prosecutor’s bible): “The attorney for the government should commence or recommend federal prosecution if he/she believes that the person's conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (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.” Juries take judges seriously when they tell them they must set aside their own biases and decide the case solely on the evidence that is admitted at trial and the law as the judge explains it to them. Juries don’t, and shouldn’t, give DOJ the benefit of the doubt. In criminal cases, a tie goes to the defendant and DOJ must prove its case beyond a reasonable doubt.

All of those caveats issued, the committee did a good job of suggesting the contours of a criminal case. I don’t subscribe to the view that DOJ will be “pushed” into prosecuting by the committee or public opinion, but I’m sure they’re listening to see if the committee has any evidence they don’t have.

DOJ is trying to undo the damage Trump inflicted on DOJ. That has led Merrick Garland, whether you agree with his approach or not, to proceed in a deliberate fashion. One suspect he wants no part of creating a tinpot dictatorship that routinely prosecutes its former leaders. But at some point, the evidence becomes so compelling that justice requires action. If we’re not going to prosecute for this, then what would we ever prosecute for?

I hope you’ll leave a comment about your reaction to the hearing.

We’re in this together,

Joyce