“Unfit for Any Office”

Today was quite a day. The January 6 committee finished the way it started, delivering the goods in a straightforward manner, absent political posturing, with some really good video and graphics to illustrate their findings for those of us who are visual learners.

The big news today is that we got the “executive summary” for the January 6 committee’s report. All 154 pages of it, which you can find here. Seems a little long for a summary, and I’ll be reading it carefully for days, after getting through a quick read this evening. The full report and underlying evidence will be released Wednesday, or perhaps later this week.

I’m not going to try to give you a full summary of the report tonight, but I do want to hit some highlights.

Following the meeting, at which Liz Cheney pronounced him “unfit for any office,” the committee swiftly referred former President Donald Trump to DOJ on four criminal charges:

1. Obstruction of an official proceeding

2. Conspiracy to defraud the United States

3. False statements made/conspiracy to submit false statements to the government (this is a new one we didn’t discuss last night, and it involves the submission of the fake slates of electors)

4. Inciting insurrection

Another important first for a president who promised “so much winning.”

January 6 committee chair Bennie Thompson characterized the committee’s goals as twofold: justice and accountability. The committee rolled out a roadmap for prosecuting crimes it believes DOJ should pursue. Thompson said that only the accountability as a result of criminal prosecutions can prevent a recurrence of January 6. But he also suggested that responsibility for the future must lie with voters, who should make sure they elect only people who put fidelity to the Constitution over party politics.

A major theme that emerged in the committee’s work was obstruction of justice. One of the big, marquee charges the committee referred Trump on is an obstruction count, one aimed at a specific proceeding: the certification of the vote. The obstruction theme that pervades the committee’s work is different from that specific charge. It is the type of obstruction that Trump’s supporters used to say, dismissively, is merely a process crime. It is the type of obstruction that involves concealing evidence during an in-progress investigation. That can happen in a lot of different ways, and federal prosecutors see all of them: witnesses become “unavailable” to testify, or they have tragically bad memories when called to the witness stand. Some witnesses lie; others refuse to disclose or hide evidence.

Different kinds of obstruction seem to crop up with regularity as part of the former president’s chronic efforts to escape responsibility for his actions. He seems to threaten or cajole witnesses, or have others do it for him, regularly. Following one of the January 6 committee hearings, Liz Cheney surprised the

audience by announcing that Trump tried to have a conversation with a witness during the investigation, but they ducked the call and alerted their lawyer. There was subsequent reporting that Trump called other witnesses “throughout the Jan. 6 investigation.” Today we heard more about this, with Representative Zoe Lofgren confirming that witnesses were represented by lawyers who declined to disclose who was paying for them and who suggested it was okay for a witness to say they didn’t recall the answer to a question when they in fact did, because the investigators “wouldn’t know.” She referred to offers of support for witnesses that were withdrawn when testimony leaked and one witnesses who was told they could be made very comfortable financially. The report confirms that Trump personally contacted a witness.

Ivanka Trump also came in for a moment of criticism, with her testimony that she couldn’t recall why she accompanied her father to his January 6 speech contradicted by her chief of staff, who said she was there to calm him down. Ivanka was identified as one of the senior White House officials whose testimony was not “entirely frank or forthcoming.” Perhaps also in that group, former Secret Service agent Tony Ornato, who drew criticism from Representative Elaine Luria. She said the “number of things he didn’t recall was staggering” given his high position in the White House.

Witness tampering, even attempted witness tampering, is a serious form of obstruction of justice. Trump’s conduct during this investigation has echoes of the Mueller investigation. The report in that matter concluded, “Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps [involving evidence and testimony investigators weren’t able to obtain], the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.” After the report was released, Mueller told reporters, “If we had had confidence that [Trump] clearly did not commit a crime, we would have said so.” But of course, they didn’t. Presumably, that was because obstruction of justice made it impossible for investigators to conclude they had all of the relevant evidence.

That’s what the criminal justice system is supposed to be about: getting to the truth of the matter. Obstruction keeps that from happening, and it has been a hallmark of the Trump presidency, whether it has involved Trump or efforts by those around him to shutter his conduct from daylight. That includes efforts to interfere with the Mueller investigation, efforts to interfere in the January 6 committee investigation that the committee detailed today, and, of course, the concealment of the memo of his phone call with Ukrainian President Zelensky, which led to his first impeachment, and Trump’s efforts to conceal the classified materials he was hoarding at Mar-a-Lago, which may lead to his first prosecution.

The committee said today that while they discuss some of the people beyond Trump who warrant DOJ’s scrutiny, they cannot identify all of them, in large part because of efforts to obstruct. Trump cronies like Rudy Giuliani, lawyers Kenneth Chesebro and John Eastman, would-be attorney general Jeff Clark, chief of staff Mark Meadows, and former Secret Service agent Ornato would all seem well-advised to hire defense lawyers if they don’t have them already. But beyond them, and when it comes to whether any additional crimes should be charged, the committee leaves further work to DOJ, which, they correctly note, has better tools at its disposal for dispensing with efforts to obstruct an investigation. DOJ can address recalcitrant-witness problems by enforcing its grand jury subpoenas. It has superior reach to Congress in this regard. That means the report isn’t giving a clean bill of health to people who it doesn’t mention.

So, although the executive summary to the report suggests DOJ should look at people other than Trump, the focus is on Trump. Assessing events on January 6, the committee says that the “evidence has led to an overriding and straight-forward conclusion: the central cause of January 6th was one man, former President Donald Trump, who many others followed. None of the events of January 6th would have happened without him.”

That might seem like an easy statement to make now, in December 2022, but if you remember where we were 18 months ago, it shows just how successful the committee’s work has been at putting together the evidence.

There was some new evidence today. One key bit of evidence about Trump’s state of mind came from Hope Hicks’s testimony. She stated that she thought it was essential for Trump to put out a statement calling for an absence of violence in advance of January 6 and that she discussed it with Trump advisor Eric Herschmann, without any results. That’s reflected in these text messages, where she appears, in this confusingly worded exchange, to tell White House Deputy Press Secretary Hogan Gidley that Herschmann tried to get Trump to do it and he refused.

I can’t recall anyone feeling the need to call Bill Clinton, George Bush, or Barack Obama in advance of a political rally to ask them to make sure they reached out to their followers and asked them to make sure they didn’t use violence. The idea that this was even at issue shows you that there were deep and serious problems in the final days of the Trump presidency. Hope Hicks seems to have taken the risk more seriously than some members of federal law enforcement did, but, leaving that aside, Trump’s refusal to reject violence and issue the requested caution is important evidence about what was in his mind.

While the evidence presented by the committee is very compelling, it’s hard to see how the court of public opinion will fail to convict Trump as it’s socialized in the next few weeks. It’s important to remember that DOJ, if it were to prosecute, operates under constraints the committee doesn’t. First, not all of the committee’s evidence would be admissible in a trial. There is an entire set of federal rules of evidence that control what testimony a jury can hear. DOJ would have to carefully evaluate evidence for issues like hearsay, relevance, and undue prejudice to determine whether the admissible evidence available to it is sufficient. And of course, the committee presentation was one-sided. It did not raise the potential defense that the former president would be almost certain to assert, like reliance on the advice of counsel and First Amendment protections for his speech, that would defeat a charge of inciting insurrection. DOJ will have to carefully assess that evidence as well, to determine whether any of the defenses are viable, and if so, whether they have sufficient evidence to get past them. None of this means the special counsel won’t be able to move forward with indictments, but it means that it’s not automatic; that there is a lot of work to be done between receiving all of the committee’s evidence and reaching the point where they can make decisions about whether charges can and should be brought.

Where is Trump in the middle of all this? He seems to be holed up at Mar-a-Lago, almost as though he’s afraid someone will serve him with a subpoena or worse if he ventures out of his resort. It’s been a long time since he sat down for an interview with the press. You’d think he’s overdue to tell his side of the story, if he in fact has one to tell. His social media posts have been little more than cries of witch hunt, without any factual refutation of the evidence the committee has put together. Trump has had enormous success over time at avoiding justice by obstructing justice, but it looks like that may be coming to an end.

Mike Pence was asked about the report on TV today and said it’s not criminal to take bad advice from lawyers. Apparently he’s forgiven the chants of “hang Mike Pence” and doesn’t think Trump should be prosecuted. That’s unlikely to permit Pence to slither back into Trump’s good graces—that ship seems to have sailed with Trump’s reported statement to Pence in their January 3 phone call that he’d made the wrong decision when he selected him to be vice president. But it seems to be an attitude cultivated by far too many people in the Republican Party in light of the strength of the evidence against Trump. We are still holding our breath for the type of country-over-party moment where the party would right-size itself like Republicans did when strong evidence of President Nixon’s crimes came to light and he was forced to resign. Republicans still don’t seem to be there. We’ll see if that changes at all as more information comes to light this week.

We’re in this together,

Joyce