What distinguished last week’s January 6th hearing from the seven that preceded it was its focus not on Trump’s actions but, rather, on his inaction.
—to interfere with Congress’s tallying of electoral votes or to coerce the D.O.J. to declare that the election was tainted by fraud. The second would require proof that Trump “corruptly” endeavored to influence, obstruct, or impede Congress’s proceedings. Both these crimes are challenging to prove beyond a reasonable doubt, because they effectively turn on establishing that Trump knew that his claim of a stolen election was a lie when he engaged in the events relating to January 6th.
The select committee’s hearings have strongly established that Trump was repeatedly told, including by his own Attorney General,, that Joe Biden had legitimately won the election. But the hearings have not strongly established that Trump was convinced by those who told him so, particularly because they also revealed that the fringe lawyers he was talking to from outside the White House were feeding him fantastical claims and conspiracy theories.
The strongest possible criminal charges against Trump would therefore avoid a need to prove he knew that the story of a stolen election was a lie. Last Thursday’s hearing demonstrated a way to do that. Trump’s false view about the election, whether he believed it or not, was irrelevant to his duty to attempt to stop the violence at the Capitol.
The legal risk inherent in having known of the violence and not having acted to stop it is apparently even understood by Melania Trump and her attorneys, judging from an official statement that she released last Thursday, on her own letterhead.
Donald Trump, during his Presidential campaign, said, “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters.” He added, “It’s, like, incredible.” Maybe he was right about that, but the shooting would still have led to an ordinary criminal indictment.
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