This week the January 6th Committee voted to make criminal referrals to the Justice Department, including the proposed indictment of former President Donald Trump. However, the Committee’s splashy finale lacked any substantial new evidence to make a compelling criminal case against former President Donald Trump. The Committee repackaged largely the same evidence that it has previously put forward over the past year. That is not enough. Indeed, the reliance on a new videotape of former Trump aide Hope Hicks seems a case of putting “hope over experience” in the criminal Justice system.
While still based largely on the failure to act, Rep. Adam Schiff (D., Cal.) insisted that “if that’s not criminal, nothing is.” The opposite may be true from a First Amendment perspective. If the failure to act is criminal, it is hard to see what would not be criminal under this standard.
After members like Schiff, again, promised new evidence to support criminal charges, the Committee continued its pattern of rehashing previously known evidence with network-quality videotapes.
The failure of the Committee to offer any new and direct evidence of criminal conduct was obvious at the outset. Vice Chair Liz Cheney began her remarks by again detailing what Trump failed to do. It was a repeat of the prior hearings and for some likely left the impression of actors who are refusing to leave the stage long after the audience departed.
The one new piece of evidence was largely duplicative. It shows former aide Hope Hicks saying that she also called upon Trump to make a public statement calling for peace and telling him that there is no evidence of systemic fraud. Nevertheless, the videotape has been heralded by figures like former acting Solicitor General Neil Katyal on MSNBC as “evidence I’ve never seen before from Hope Hicks.” Katyal bizarrely claims “I think that tells you all you need to know about premeditation. Call it criminal intent. The House committees evidence here is very strong.”
So all you need for premeditation is the failure to accept the weight of evidence or to act promptly after the start of a riot. Katyal might “call it criminal intent” but many judges would likely call it something else.
The fact is that the J6 Committee failed to change many minds largely because of what was on display in the final public meeting. It was the same highly scripted, one-sided account repeated mantra-like for months. There is justifiable anger over these accounts, but this hearing was billed as presenting the case for criminal charges. It missed that mark by a considerable measure.
Of course, to raise obvious legal barriers to prosecution today is to invite an Internet flash mob accusing you for being an insurrectionist or fellow traveler. Major media from the Washington Post to National Public Radio routinely refer to the riot as an insurrection despite a deep disagreement over the characterization of the criminal conduct. The media unrelentingly echoes this one view despite polls showing most citizens view that day as a reprehensible “riot” motivated by loyalty to Trump.
The media also downplayed the glaring failure of the J6 Committee to produce what it described as bombshell evidence of a criminal conspiracy by Trump. Members like Rep. Adam Schiff (D., Ca.) repeatedly promised that the next hearing would reveal such direct evidence only to have the same rehashing of the prior claims for prosecution.
The Committee was playing to the same audience and knew that they did not have to produce such evidence to make their case. Experts like Harvard law professor Laurence Tribe have previously declared Trump’s felonies were shown “without any doubt, beyond a reasonable doubt, beyond any doubt, and the crimes are obvious.” That included what Tribe suggested was a clear case of attempted murder of former Vice President Pence.
The problem is that crimes actually require satisfaction of underlying elements and cannot be proven by soundbite or desire alone.
Instead, much of the evidence cited what an official failed to do. Yet the last hearing seemed to focus on a number of things that did not occur, from a draft tweet that was not sent to an executive order that was never signed. There were discussions of appointing Trump attorney Sidney Powell as a special counsel, seizing voting machines or replacing the Justice Department’s leadership. It is a chilling list, but it is also notable in that no final action was taken on such proposals.
That is a far cry from evidence showing mens rea — “guilty mind.” However, crimes generally require both guilty minds and guilty acts. Building a criminal case on the failure to act to stop the violence is a notoriously difficult case to make.
The most damning evidence concerns what Trump failed to do in those 187 minutes.
However, while repeatedly omitted by the Committee, Trump told his supporters to go to the Capitol “peacefully” to support Republicans challenging the election. At 1:11 p.m., Trump concluded his speech. Around 2:10 p.m., people surged up the Capitol steps. At 4:17 p.m., Trump made his statement to stop — roughly an hour and a half later.
That speech appears protected by the First Amendment and existing Supreme Court precedent. In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.” The Trump speech, in my view, falls well below that standard for criminalization.
Repetition of the same earlier points does little to strengthen the case for prosecution. The Committee has presented a powerful record of Trump’s failures on that day, including his reckless rhetoric and lack of response. Trump may be guilty of all of these failings, but that does not mean that he is a criminal actor. The reason that Mar-a-Lago presents a greater threat to Trump is that it is based on his actions, not inaction, in retaining classified material.
It is a disappointing end for the J6 Committee, which could have been so much more than it was. Both sides have pointed fingers at each other for the failure to have a single member nominated by the Republican party. However, even after that breakdown, the Committee could have strived to create greater balance by discussing alternative interpretations of key actions or statements. It could have allowed for greater public examination of witnesses rather than the tightly scripted accounts used in the hearings. It could have explored other issues in public hearings, including the failure of the Congress to adequately prepare for the riot despite prior warnings.
While some Democrats have asserted an almost proprietary claim to the January 6th riot, this was a desecration of our constitutional process that harmed us all. Indeed some of us were critical of Trump’s speech as he was giving it. At a minimum, that day was a failure of leadership — but that does not mean it was a violation of the criminal code.
While the members assured each other that history would honor their efforts, the judgment is likely to be more mixed. It is not a criticism of what they became as much as what they could have become in investigating the tragedy of January 6th.
Despite the broad condemnation of Trump for his speech and conduct on that day, there is a difference between what is viewed as reprehensible and what is chargeable as criminal conduct.