On Trump Scheme, the January 6 Committee Overpromises and Underdelivers

M y weekend column observed that, as de facto chief prosecutor, House January 6 committee vice-chairwoman Liz Cheney (R., Wyo.) has done an effective job of pressing the case that then-president Donald Trump committed impeachable acts between Election Day 2020 and the Capitol riot. But establishing Trump’s unfitness for the nation’s highest office is one thing; it’s quite something else to establish beyond a reasonable doubt that he’s guilty of penal crimes, another objective that Cheney and other committee members have been unabashed in pursuing.

I won’t belabor my contentions that there is no appetite in Washington for impeaching Trump yet again, and that indicting him would be bad for the country in several ways. For present purposes, I’ll simply observe that the committee’s goal of proving that Trump may be guilty of criminal offenses is undermined by its dubious theory of Trump’s overarching scheme. I put it this way in the column:

I’m puzzled by Cheney’s claim that Trump had a carefully thought out, rigorously implemented seven-part plan to reverse the election result. Trump is neither careful, thoughtful, nor disciplined. I don’t get why she would float this theory when it is unnecessary for purposes of demonstrating Trump’s unfitness or potential criminality. The prosecutor’s rule of thumb is to under-promise and over-deliver; the other way round can get guilty people acquitted.

From speaking with people and monitoring commentary about the committee hearings, I believe this point is being borne out. By touting its high-profile, nationally televised June hearings as an effort to prove that Trump orchestrated a carefully planned, multifaceted plot to overturn the election and retain power, the committee has convinced many people that it must demonstrate that such a plot existed for Trump to be guilty. If we think of the committee as prosecutors giving only their side of a case to a grand jury — a good analogy — this is a tactical blunder.

According to Cheney’s opening statement at the committee’s first hearing, Trump’s conspiracy to overturn the election had the following elements:

1. The effort to gull the public into believing the election was stolen through the “Stop the Steal” fraud, which comprised frivolous lawsuits and mendacious public statements made by Trump and his team from Election Night through January 6;
2. The unsuccessful attempt to recruit the Justice Department to pressure select state governments into invalidating their election results;
3. The coercion of Vice President Pence in a futile effort to get him to discount those select states’ electoral votes, or at least adjourn the January 6 joint session of Congress for ten days to enable those select states to “audit” their election results;
4. The ham-fisted attempt to pressure state elections officials to invalidate election results, and to pressure state legislators to reverse those results;
5. The half-baked “fake electors” scheme, in which select states that had majority-Republican legislatures and were won by Biden would somehow endorse purported slates of Trump electors, with the notion of presenting them to Congress as legitimate and available alternatives to the state-certified Biden slates of electors;
6. Trump’s summoning and assembling of a violent mob to come to Washington on January 6 and march on the Capitol (which presupposes that Trump controlled the mob and intended it to riot, an allegation the Justice Department has studiously not made despite charging over 800 people in connection with the riot); and
7. Trump’s ignoring of pleas for assistance during the riot and his failure to take action to stop the violence (things that were hardly unforeseeable but would have been difficult to scheme out ahead of time — and the raising of which highlights the committee’s failures to concede Trump’s statements about “peaceful” protest, the grudging actions he did eventually take, and the Democrats’ at least partial responsibility for the lack of adequate security in the Capitol that day).

To be sure, all seven of these elements can be established to one degree or another. But that doesn’t mean the committee can establish that there was a coherent conspiracy. To my mind, it is better understood as a blizzard of malevolent but mostly incompetent activity, some of it extensively thought-through (e.g., John Eastman’s specious legal strategy to have Pence derail the congressional counting of electoral votes), some of it tirelessly pursued (the Trump-driven public-messaging component of Stop the Steal, as opposed to the laughable lawsuits), and most of it inchoate and reactive.

Now, the committee is not finished presenting evidence. Maybe it has the goods on the big scheme, and my skepticism will prove unfounded. Of course, if that’s the case, then the committee will run headlong into the legitimacy problem that has been spotlighted several times before (including in our Monday editorial): In composing this committee, House Democrats eschewed American norms that congressional hearings be adversarial and honor basic due-process principles, and so the committee’s conclusions will warrant suspicion and will, by much of the country, be ignored.

For argument’s sake, though, let’s put those reservations aside. My narrow point for the moment is that proof of a coherent, methodical scheme is utterly unnecessary to demonstrate either Trump’s unfitness or his potential criminal guilt. So why would the committee, with such fanfare, promise something it probably can’t deliver and, moreover, doesn’t need to deliver?

First, let’s briefly take unfitness for office. If Trump tried to pull off even half the steps the committee has outlined (and, as noted above, I think he did try to pull off all of them to varying degrees), his actions would obviously be impeachable. That is, he would be subject to removal if he were still in office, and to disqualification from future office in any event. It would make no difference whether the former president and his underlings had conceived a seven-step blueprint and then endeavored to follow through: Doing and attempting to do these things was bad enough. Many times, presidents are faced with unanticipated developments, but there is no doubt about what they may or must do in response, because they are bound by the Constitution. Trump’s actions demonstrate that constitutional restraints were of no concern to him. He is thus unfit to hold the office again regardless of how much, if any, malice aforethought there was in any of his actions.

Second, let’s move on to criminal liability. To keep it simple, we’ll consider only the most plausible criminal offense that could be charged against Trump: obstruction of a congressional proceeding, under Section 1512(c)(2) of the federal penal code.

To be guilty of this offense, one need not conspire with others, much less develop a multi-prong, methodically executed plan. Guilt, even of a person acting alone, can be established by proving that he corruptly obstructed, influenced, or impeded a congressional proceeding. Nothing more is necessary.

The main question in such a prosecution would be whether Trump acted corruptly. The answer would come down to intent, because there is little doubt that Trump endeavored to influence members of Congress and the vice president to (a) refuse to count the electoral votes of some states won by Biden; and (b) refuse to acknowledge Biden’s Electoral College victory and thus to recognize him as the president-elect. The real question is whether Trump undertook that pressure campaign based on sincerely held beliefs that (1) vote-fraud had been committed in these states; and (2) a viable legal theory empowered the vice president to discount state electoral votes or delay Congress’s vote count. Plainly, this is why the committee is spending so much time highlighting witnesses who authoritatively told Trump that there was no fraud (e.g., former attorney general Bill Barr), and that the Eastman legal theory was sheer nonsense (e.g., top Pence aides Marc Short and Greg Jacob, along with former federal judge J. Michael Luttig).

Again, the fact that the case comes down to intent doesn’t mean it’s an easy case to make. It’s not — the committee has avoided confronting what Trump may have believed about the validity of his lawyers’ cockamamie theories of fraud, as well as such relevant evidence as Eastman’s robust defense of his legal theory (see, e.g., here) — and I note that, heretofore, it has been assumed that a lawyer can posit an audaciously creative or even frivolous legal theory without crossing the line into criminal fraud. (Indeed, even Supreme Court justices can. See, e.g., Roe v. Wade.)

It is not my purpose here to address the sundry other legal and policy reasons why the Justice Department should exercise its discretion in declining to indict Trump for obstruction of Congress; we can cover those in other posts. My point here is simply that it is unnecessary to prove an elaborate conspiracy in order to illustrate that Trump is impeachable, or that he may have committed felony obstruction of Congress. (On criminal liability, I’m not addressing conspiracy to defraud the government, which would be a dubious charge, or seditious conspiracy — especially given the dearth of evidence that Trump ordered the use of force, and the Justice Department’s position that Trump is not a co-conspirator in its Capitol riot cases.)

By telling the country that it would establish Trump’s complicity in a methodical, multi-pronged scheme to overturn the election and remain in power, the January 6 committee set itself an unnecessarily high bar to clear: To demonstrate Trump’s impeachability and criminal liability, it would have to prove that such a scheme existed. This was a burden of proof that the committee needn’t have taken on, and its choice to do so anyway is thus a self-inflicted wound.