Will Attorney General Merrick Grland bring Donald Trump to trial for his actions on January 6, 2021? This is surely the outcome House Speaker Nancy Pelosi, D.Calif., and Rep. Liz Cheney. They are the ones who run the House select panel on the Capitol riot.
But the odds favoring such a dramatic result—despite all the sensational testimony and disinformation disgorged by the hearings—would still be long in Las Vegas gambling circles.
The most important star witness for the select committee in recent weeks was former White House staffer Cassidy Hutchinson, who told a dramatic tale about President Trump’s seizing the wheel of the Secret Service car he was riding in after he had been told he couldn’t accompany the crowd that was going to the Capitol.
However, Hutchinson’s story was a secondhand account, and no cross-examination was allowed. Secret Service agents were reportedly able to refute the story and were willing testify, but they were not called.
We learned then that Hutchinson, a star witness, had told influential friends how much she loved Trump and how regrettable she was that Trump’s Florida team had rejected her for a job.
All this shows how desperate, irresponsible and vindictive Cheney and Pelosi were in running the select commission.
This was not the first time they used below-the belt tactics to put the 45th President in a jumpsuit. Cheney attempted to make Trump a target for the prosecution by trying to prove that he was guilty of “seditious conspiracy” for directly communicating with the Oath Keepers and Proud Boys, who have a reputation for advocating violence against groups on the left.
Trump, the Oath Keepers and the Proud Boys were, she claimed, all conspiring to overthrow the U.S. government. The Wall Street Journal, a harsh critic of Trump’s stolen election meme, said the “seditious conspiracy” charge was in no way persuasive and that Cheney “offered no evidence” (repeat: “no evidence”) that Trump communicated directly with either group.
Hard Case to Make
But other than made-up tales by the Pelosi/Cheney lynch team, there’s a far more important reason why the Justice Department may never attempt to indict the former president. Even though Trump’s conduct may be criticized by some legal experts, they believe that Trump’s actions on Jan. 6 were not illegal.
The Washington Post, one of Trump’s most ferocious critics, completed a stunning investigative report back in January quoting distinguished prosecutors, defense lawyers, law professors, and judges on whether our country’s former chief executive could be criminally charged for any of his actions on Jan. 6, 2021—or even on days leading up to that event.
The verdict: The Justice Department would have difficulty getting an indictment, and even more difficult to obtain a conviction. The newspaper, which is ferociously anti Trump, has not changed its initial conclusion.
The Post reported that the legal experts to whom reporters talked believe that much of what Trump’s critics have accused him of traditionally has been protected by the First Amendment.
He’s not the first politician to “call on his supporters to fight,” a word that is commonly used in political campaigns and not a call to forcibly break into a nation’s Capitol and physically threaten lawmakers.
And while Trump told the crowd to march to the Capitol, “there is no evidence,” the Post stressed, “that he knew they planned to storm the building.” (It’s worth repeating: “no evidence.”)
Nor do the House committee’s current hearings contradict this finding. The hearings show what has been revealed: Trump has a fiery temper and uses bullying tactics and threats even against his vice president. This may not be a flattering personal trait, but has not yet been viewed as criminal by our country’s legal community.
What Trump Believed
The Post raised major doubts that Trump would even be prosecuted for demanding that Georgia’s secretary of state, Brad Raffensperger, come up with enough votes in that state to overcome Biden’s lead.
“I just want to find 11,780 votes, which is one more than we have,” Trump told Raffensberger. If he had said that, he might have been subject to federal criminal prosecution. But he added this mitigating comment, which his enemies normally omit: “Because we won the state.”
These five words are so important. According to the Post, legal experts who are credible said that if Trump truly believed that the election was stolen, it would not be difficult to charge him for contesting the outcome. (Atlanta’s area district attorney has a grand jury looking into whether Trump and his allies violated state law with his call to Raffensperger and their setting up an alternate slate of electors to those pledged to Joe Biden.)
Greg Jacob, former counsel to Vice President Mike Pence, portrayed lawyer John Eastman as key to Trump’s frame of mind and why the president thought he had the power to overturn the election. Pence was convinced by the historical record, which showed that the vice president had no authority to prevent Biden from occupying Oval Office.
Trump claimed that Pence had that authority and he was wrong to not use it. His main source of information was Eastman. Trump lavishly praised Eastman during the Jan. 6 rally that preceded this riot.
Jacob also said Eastman barged into a meeting of the vice president’s advisers Jan. 5, “trying to persuade us that there was some validity to his theory.” Jacob and the others weren’t buying.
“The key to pretty much all these crimes he’s been accused of,” former federal prosecutor Randall Ellison told the Post, “would be proving corrupt intent.”
Ellison strongly implied that there would be no corruption if Trump could prove that his legal teams agreed that the election had been stolen and that Pence was authorized to declare Trump the winner.
No Ambulance Chaser
Jacob revealed that Trump relied on Eastman as his legal expert. He was not the only one to name Eastman as the man who persuaded Trump to overturn the election. The select committee shared video testimony from top White House adviser and lawyer Eric Herschmann, who also said Eastman kept pushing for a way to overturn Biden’s victory.
Eastman isn’t an ambulance chaser. Eastman was a former Chapman University School of Law professor and dean. And even The New York Times remarked that Eastman had “strong conservative legal credentials.”
So it’s hardly surprising that Trump had come to believe two things because of Eastman: that the election was stolen and that Pence had the authority to deny Biden the presidency. (Two other lawyers, Rudy Giuliani and Sidney Powell, also helped shape the president’s thinking.)
Other legal experts discovered by the Times, another powerful anti-Trump publication, hold similar exculpatory views on Trump’s actions.
Daniel L. Zelenko was a defense lawyer and former federal procuror who sided with Ellison. “The key,” he told the Times, “is having contemporaneous evidence that Trump knew the election was not stolen but tried to stay in power anyway.”
Samuel W. Buell, a Duke University professor of law, made the same pitch. “You need to show,” he also told the Times, “that he knew what he was doing was wrongful and had no legal basis.”
However, no such evidence has been presented. Trump’s purpose in his rally speech on the Ellipse south of the White House was not to start a riot, but to educate those going to the Capitol building why he believed he had defeated Biden.
The marchers were expected to share their view with the Republican lawmakers that they were going to meet, in hopes of convincing them to tell Pence to call the election for Trump. Trump’s view may have been dead wrong but peacefully advocating it, as he clearly did, turns out not to be a criminal act.
The testimony of the select committee was abundant to show that Trump believed he had defeated Biden. Trump’s attorney general, William Barr, said as much even though he told the president he was wrong. Barr’s new book also states that Trump cited material Giuliani provided him, which further reinforced his belief that he had won.
The House select committee is expected to release its final report closer than the midterm elections. This is expected to be a full-scale attack against Trump and the entire Republican Party. The GOP will have the task of challenging it.
Some think Rep. Jim Jordan, the Ohio Republican kicked off the panel by Pelosi and Cheney, should take the lead role in exposing the committee’s raw partisanship.
Jordan’s report should list the numerous times Trump asked those going to the Capitol to demonstrate peacefully. It should detail how distinguished jurists believe Trump acted legally, even if he was not acting wisely.
(Trump was blamed for not responding quickly enough to stop the violence. Really? Really?
Still Jan. 6, 2021, was the worst day of the president’s term. The rioters were some of his most devoted followers and had been stoked by the president’s still-unproven claims that voting machines had been rigged to give Biden the victory. Trump may declare that he won, but the Constitution and Congress did not grant his vice president the power to stop Biden from becoming the 46th President.
Trump’s handling of the situation has become a running sore for his party, since no Republican lawmaker can disagree publicly with his endless haranguing on the topic without Trump unleashing his most dedicated loyalists against that person.
Trump’s behavior is often deplorable. But the chances of Garland indicting him have to be considered unlikely, since the attorney general is well aware that respected legal authorities don’t think the case against Trump will stand up in court.
Ruth Marcus, the liberal columnist covering legal matters for The Post, has this view. “Prosecutors, after all,” she writes, “must be confident of their ability to prove their case beyond a reasonable doubt.” By nature, she adds, Garland is thoughtful and methodical and “would proceed only if the evidence was too overwhelming to ignore.” At this point, it’s underwhelming.
No matter how eager the House select committee is for Garland to take Trump on, there are too many reasons why he’s likely to avoid that challenge, including this one: He doesn’t seem like a man who wants to be remembered for putting the country through the enormous turmoil it would suffer if the Democrats’ attorney general decided to launch a volcanic indictment against a popular—if polarizing—Republican former president.
That’s true especially when even much of the liberal legal establishment thinks such an act would be unconstitutional. Las Vegas oddsmakers would likely bet that he would lose the case.
Reprinted with permission by Newsmax.
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