WASHINGTON (AP) – The House Jan. 6 committee has heard dramatic testimony from former White House aides and others about Donald Trump’s relentless efforts to reverse the 2020 election – and the incitement of supporters to attack the U.S. capital to achieve their goals. But the big question remains: was he a criminal?
Trump’s White House aide, Cassidy Hutchinson, added new urgency to the question on Tuesday as he gave explosive new testimony about Trump’s actions before and during the January 6, 2021, uprising. She said Trump was told at his morning rally that there were armed protesters before he stood on stage and told them to “fight like hell” in the capital. She then argued with her security details, saying she was trying to go with the crowd.
Trump’s allies knew there could be legal consequences. Hutchinson said White House adviser Pat Cipolon told him he would be “charged with every crime we can imagine.” Cipolon said Trump could obstruct himself in accusing him of justice or cheating in the election count, she said.
In the wake of Hutchinson’s public testimony, the House committee issued a subpoena for Cipolon on Wednesday, in a letter stating that he had given an “informal interview” on April 13, which became his subpoena when he refused to testify on record. Required
The Justice Department recently expanded its investigation into the January 6 attack, targeting Trump’s allies in Washington and around the country who were part of his plan to invalidate Biden’s victory. But prosecutors have not indicated whether they will file a lawsuit against the former president.
A look at potential crimes, and what Congress and the Department of Justice can do:
What does the evidence show?
Witnesses testified that Trump was repeatedly advised by campaign aides and top government officials that he had lost the election to Biden and that his claims of widespread voter fraud were out of touch with reality.
However, he went ahead shouting false accusations that turned into a riot in the capital.
Still in office, he turned to government law enforcement officials to take his case to the Department of Justice. He pressured states – for example, to ask Georgia’s secretary of state to “find” votes – and Vice President Mike Pence, who was chairing a joint session of Congress that day.
Hutchinson testified that Trump said he wanted to remove metal detectors from near the Jan. 6 speech area. He asserted that his confession had been obtained through torture and that his confession had been obtained through torture. He was not there to hurt her.
Trump took to his social media website on Tuesday to deny much of Hutchinson’s testimony, based on information about his own interactions with Trump and others who spoke to him that day.
Did Trump commit any crime?
No charges have been filed against him, but legal experts believe the testimony can confirm it, giving prosecutors a chance to pursue it.
Federal law, for example, makes it a crime to incite, organize, incite, or promote riots such as the one surrounding the capital. But that’s a high bar to clear prosecutors. Trump’s call for “fighting like hell” can be interpreted as a more general call to action. He was acquitted by the Senate on charges of inciting his impeachment trial after the uprising.
Yet, in February, a federal judge, rejecting Trump’s request to exclude conspiracy cases from Democratic lawmakers and two Capitol police officers, said Trump’s words “rudely” provoked a riot. And Hutchinson’s first-hand account of Trump’s complaints about metal detectors suggested he was aware that some supporters were capable of committing violence but removed it.
Another possible alternative to the prosecution is Jimmy Guru, a former federal prosecutor and professor of Notre Dame law. Congress action in which the results had to be verified.
That wide-ranging legislative committee was quoted as saying in its March legal filing that it contained evidence that Trump was involved in a “criminal conspiracy.”
“He was perpetuating a big lie. For what? To stay in power and prevent Biden from taking the reins of the presidency,” said Guru. “It was a betrayal of the American people.”
Some legal experts say Trump doesn’t care if the election is rigged or not. But others say much depends on the president’s intentions and state of mind and whether he supports activities he knows are illegal. Although witnesses have testified under oath to tell Trump they have lost, it will be difficult to prove what he actually believed.
“I can say with confidence that any serious crime-level federal crime charged here requires evidence beyond reasonable doubt of criminal intent,” said Samuel Buell, a professor of criminal law at Duke University.
“Any argument he doesn’t believe he’s doing is against the law … is still an argument he can make and still has to be proven by the prosecutor.”
Does the Department of Justice really bring up the issue?
That is someone’s guess. Congressional hearings have produced eye-opening testimonies, but unilateral presentation of facts, without any opportunities for cross-examination of witnesses, is far from the burden of evidence and trial barriers in criminal prosecution.
One of Hutchinson’s most notable accounts – the one Trump drove to the White House instead of the Capitol on January 6 – tried to grab the steering wheel of his presidential car – something he had heard with his second hand. Unacceptable before the jury.
There are clear indications that prosecutors are moving beyond rioting, with many state Republican party presidents serving as subpoenas in an attempt to spoil the vote in an investigation by Trump aides into plans to create alternative, or fake, voter slates.
Attorney General Merrick Garland, a former federal appeals court judge and perspective by nature, the Department of Justice has promised accountability at “any level” of wrongdoing – more than 80,000 people have been charged so far – but he has not said one way or another. That he is considering an issue against Trump.
Some Democrats in Congress are pressuring Garland to act. The January 6 committee itself could make a formal criminal reference based on its more than 1,000 interviews. The Department of Justice should not act on such referrals, but it is pressuring the panel to hand over its interview transcripts as it weighs its own case.
A Justice Department spokesman declined to comment.
There is no legal impediment to indicting Trump as former president. Since he is no longer in office, the legal opinion of the Department of Justice that shielded him from criminal charges no longer applies.
But if cumulative evidence is proven beyond reasonable doubt, it may be difficult for the department to stay away from the issue, there are other factors to consider. No former president has been indicted by the Justice Department, and a criminal case against an already polarized former president threatens to further divide the country.
Trump has also laid the groundwork for another presidential race, and the department could avoid any notion that it is targeting Biden’s political opponents in the heat of the election.
“It will,” Buell said, “is one of the most difficult issues facing any U.S. attorney general.”