Ankush Khardori unpacks the legal substance and limitations of the January 6 hearings thus far, including whether Trump should be charged
Looming over everything. Photo: Tom Brenner/The Washington Post via Getty Images The January 6 select committee’s primetime hearing on Thursday night was the culmination of months of buildup over what the panel would reveal about Donald Trump’s actions during the 187 minutes in which he watched his supporters storm the U.S. Capitol from inside the White House, and in many respects, it did not disappoint.
The committee’s latest session encapsulated the most impressive and most frustrating aspects of these hearings, which are now officially going to pick back up in September. The panel has excelled at uncovering and connecting dots — discrete pieces of evidence from an apparently massive and intensive investigation.
There was also a module of evidence designed to corroborate Cassidy Hutchinson’s claim that she was told about a physical confrontation between Trump and his Secret Service protection, except that if you watched closely, the other accounts seemed simply to describe Trump being extremely angry — not the assault by Trump that Hutchinson says she was told about.
Donoghue provided what seems to have been a rather different account when he was asked about the same call behind closed doors in an investigation by the Senate Judiciary Committee. At that time, he said that “the president did the vast majority of the talking” and “we sort of were taking the approach of saying, you know, ‘Yes, we’re aware of it,’ or if we’re not, admitting that, ‘Well, we haven’t heard that one before.
You can come up with reasons to justify all this, including, perhaps, the importance of ensuring that the president’s direct communications with his top advisers are not routinely disclosed. People are also legally entitled to exercise their right against self-incrimination, but the reality is that, however justifiable the reasons might or might not have been on the part of these witnesses, there remain meaningful holes in the committee’s investigative record.
There are several possible countervailing considerations that prosecutors must also weigh, including whether “ the prosecution would serve no substantial federal interest; the person is subject to effective prosecution in another jurisdiction; or there exists an adequate non-criminal alternative to prosecution.
A great deal of weight has been placed on Hutchinson’s testimony about Trump wanting to let armed supporters into his speech at the Ellipse, but it is more fraught than people have generally acknowledged. That is at least in part because Hutchinson herself seems to have understood that Trump’s interest was in increasing the size of the crowd for photos, not in deliberately seeding the crowd with people who had firearms.
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