December 20, 2022

Jan. 6 Committee

The U.S. House of Representatives panel probing the Jan. 6, 2021, attack on the Capitol asked federal prosecutors on Monday to charge Donald Trump with four crimes, including obstruction and insurrection, for his role in sparking the deadly riot… The request does not compel federal prosecutors to act, but comes as a special counsel is overseeing two other federal probes of Trump.” Reuters

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From the Left

The left supports the potential charges, arguing that Trump must be held to account for trying to overturn the election.

“The ‘obstruction’ charge—Title 18 Section 1512 c—says that it’s illegal to attempt to obstruct or impede an official proceeding of Congress. The entire point of Trump’s actions leading up to the attack on Congress was to impede the election certification process. He literally ordered his armed mob to march down to the Capitol in the hopes of intimidating Mike Pence, who was presiding over a closed session of Congress. That is… impeding a proceeding…

“The charge for ‘defrauding’ the American people—Title 18 Section 1001 and Title 18 Section 371—goes directly to his fake electors scheme. The statute at Section 1001 makes it illegal to ‘falsify, conceal, or cover up by any trick, scheme, or device a material fact.’ Section 371 is the ‘conspiracy’ version of that, making it illegal to enter into a fraudulent scheme with a number of people…

“Trump and his cronies were out there pushing a scheme to submit electors that were not electors. This is fraud. Trump’s intent to use these electors to defraud the public is documented by the overwhelming number of people, including his own attorney general Bill Barr, telling him that he lost the election.”

Elie Mystal, The Nation

“Rep. Raskin cited the ‘fake elector scheme’ in which Trump directly participated. It involved getting Republicans in seven states where he had lost the vote to manufacture illegitimate slates of Trump electors. Those phony slates submitted to Congress had fraudulent ‘official’ seals or certifications: false statements of the kind that angers jurors and leads them to convict

“We also have an important judicial benchmark that supports a charge of insurrection. In February 2022, federal district court Judge Amit Mehta rejected Trump’s motion to dismiss three civil lawsuits against him, two by congressional representatives and one by Capitol police officers. The suits alleged that Trump led a conspiracy to incite the crowd to insurrection. Judge Mehta wrote that ‘the President’s January 6 Rally Speech can reasonably be viewed as a call … for imminent violence or lawlessness,’ made with knowledge that militia groups prone to violence were in the crowd.”

Dennis Aftergut, Slate

“Considered in its totality, the picture presented is clear. Trump enticed people to come to Washington with his ‘wild’ tweet. He and his allies proposed a march but, with attorneys recommending against the idea, downplayed the idea until it ‘suddenly’ appeared in Trump’s speech…

Trump knew that people in the audience were armed and that he was not at risk from their weapons. And if he knew he wasn’t at risk, it suggests he knew who might be: members of Congress or other political opponents… There were numerous existent threats. Yet Trump called for people to march to the Capitol anyway, even enticing them further by promising that he’d join them there… He knew violence was underway soon after it began. He took no tangible steps before or at the outset of the riot to stem the violence.”

Philip Bump, Washington Post

From the Right

The right is skeptical of potential charges, and argues that this referral gives Trump a basis for claims of bias if he is later indicted.

The right is skeptical of potential charges, and argues that this referral gives Trump a basis for claims of bias if he is later indicted.

“The ‘insurrection’ on Jan. 6 was a rally that turned into a riot. As far as we know, there isn’t any allegation that Mr. Trump was secretly urging on instigators, such as the Oath Keepers or Proud Boys. There’s been much loose talk about Jan. 6 as an attempted ‘coup,’ but Mr. Trump lacked support from the military, his own White House lawyers, most if not all of his cabinet, senior leaders at the Justice Department, senior legislative leaders in contested states, and his own Vice President…

“When Mr. Trump pressured VP Mike Pence to reject Electoral College votes, he was following a crackpot legal theory that claimed to represent the true meaning of the Constitution. It was floated by John Eastman, a former law professor whom the committee also referred to the Justice Department. But giving rotten legal advice isn’t illegal. Mr. Trump’s ultimate goal wasn’t to obstruct the Congressional session on Jan. 6; he wanted it to go his way…

“Also, what about the First Amendment? The 2020 election wasn’t stolen, but Mr. Trump has a right to argue it was, even if he knows he’s misleading his followers. Politicians dissemble all the time. The Justice Department’s job isn’t to police partisan deceit as criminal conspiracy.”

Editorial Board, Wall Street Journal

“Despite prosecuting upwards of 800 people in connection with the Capitol riot, the Justice Department hasn’t charged a single person with the federal crime of insurrection. Moreover, in connection with the most serious charges involving violence — seditious conspiracy and conspiracy to obstruct Congress — the DOJ has not even cited Trump as an unindicted co-conspirator, much less charged him. To the contrary, prosecutors have taken the position that he was a pretext for violence, not its catalyst; they have rejected efforts by the rioters to shift blame to the former president…

“[Furthermore the committee] was handpicked by Democratic leadership. Even the committee’s two Republicans were chosen by Speaker Nancy Pelosi, over the heated objection of GOP leadership. The only required credential for committee service was a loathing of Donald Trump. The committee permitted no cross-examination or alternative perspectives. Its sessions were not adversarial hearings; they were highly rehearsed, dramatic presentations of testimony and video, spliced and diced to support a political narrative that went unchallenged…

“Which is why the referral may actually hurt a prosecution. Even if prosecutors meticulously build a case with reliable evidence and testimony, a referral enables the defendant to argue that the indictment is politically motivated…

“Trump would point out that only after he announced that he was running against President Biden did a Democrat-controlled committee issue a nakedly partisan call for prosecution, and only then did Biden’s Justice Department answer that call with an indictment clearly designed to knock out a candidate Biden fears.”

Andrew C. McCarthy, New York Post

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