This blog post started as a YouTube video. You can see it here.
A lot of this blog post comes from the NBC Think Op-Ed piece I published this week entitled, “What was Trump’s Role During the Capitol Riot? The House Plans to Find out. You can read it here.
I’ll expand on the ideas I presented in that piece, and what all of this means.
The sources for everything I’m about to tell you are in that article. I’ll put a link with the notes to this video.
On Wednesday, the select House committee investigating the Jan. 6 attack on the U.S. Capitol demanded that various federal agencies hand over numerous documents related to the riot. These requests target then-President Donald Trump, members of Trump’s family, members of Congress, and congressional staff members, among others. Trump has threatened to challenge the document demand on the basis of executive privilege, but I wouldn’t worry too much about that. He doesn’t have much of legal leg to stand on.
We can learn a lot about what the select committee is doing and thinking from the specifics of their document demand.
It’s clear that the big questions on the minds of the committee members are: What did Trump — and White House officials — know about the attack on the Capitol? And when did they know it?
These questions are key because almost all legal violations (with a few exceptions) require that the accused acted with some degree of intent or knowledge. The law, for obvious reasons, treats accidental injuries differently from those inflicted intentionally. Proving intent or knowledge is one of the things that makes criminal prosecutions tricky and difficult.
So far, more than 570 Americans have been charged in the attack on the Capitol. Prosecutors have brought charges like “obstructing an official proceeding” (18 US Code 1505) and engaging in “disorderly conduct in a restricted building” (18 U.S. Code 1752).
So, all crimes have two components: the illegal act and the intention.
It’s easy to show the act part. It’s easy to show that Trump and members of his inner circle took steps to make sure the riot would happen in time to disrupt the proceedings of Congress. The name of the rally, after all, was Stop the Steal, and it was planned for the exact time Congress was meeting to certify the election. What a coincidence, right?
And Trump told the assembled crowd that they needed to demand that Congress “do the right thing and only count the electors who have been lawfully slated.” Trump also made it clear that he wanted Vice President Mike Pence to refuse to confirm Joe Biden’s win. And Republican leaders were clear that “steal” meant denying that Trump won the election. At exactly 1:10 p.m., Trump directed the rallygoers toward the Capitol. The proceedings began at 1:30. Coincidence? I don’t think so.
If all that isn’t enough, during the midst of the rioters storming the building, Trump’s personal attorney Rudy Giuliani left a voicemail for at least one Senator asking him to delay the proceedings, “to just slow it down so that we get ourselves into tomorrow ideally until the end of tomorrow.”
So proving the act part isn’t hard. It’s proving the intent part that’s hard. The defense put forward for Trump and others is that they never intended anything other than a peaceful demonstration.
Intent is usually proven by circumstantial evidence because, unless a person signs a confession or is overheard revealing their intentions, the thoughts of a person can’t be known with absolute certainty. Courts find that a person intended the natural and probable consequences of their actions.
But in a high-profile case such as this one involving a former president and members of Congress, investigators and prosecutors understandably require that the evidence to be airtight.
There’s something else to remember for the people asking why it’s taking so long because there’s plenty of evidence: Congress’s task isn’t to persuade a judge and jury. That happens in a different forum. Congress needs to persuade the public. They need the evidence airtight and irrefutable and easy to fit into a soundbite. Hence the need for documents and contemporaneous notes.
So if Trump or any members of his inner circle intended and took steps to help the rioters to impede the counting of the Electoral College votes by means of disorderly conduct, they, too, would be in violation of these codes.
This is important: All that is needed is to show that Trump intended the rally-goers to disrupt the proceedings of Congress and that he knew, given the nature of the crowd, that they would resort to unruly behavior to accomplish this. He would then be responsible for the natural and probable consequences of such a disturbance.
Note: It’s not necessary to show that he intended violence and it’s not necessary to show that he had a sweeping goal like overthrowing the government.
It’s evident from the documents demanded that the select committee is trying to get to Trump’s intent—and the intent of members of his inner circle. Because the document request also concerns communications with members of Congress, it’s clear that the committee wants to know what these members of congress intended as well.
So how will the documents requested show intent? Let’s take a look.
To take one example of many, the committee has asked for records concerning “Planning by the White House and Others for Legal or Other Strategies to Delay, Halt, or Otherwise Impede the Electoral Count.”
If Trump or other White House officials saw military tactical gear in the crowd and then proceeded to direct the people to the Capitol, that would undermine the sincerity of Trump’s use of the word “peacefully.”
Such evidence could answer these questions: Did Trump actually want a peaceful demonstration? Or did he want plausible deniability?
Meanwhile, other cases are working their way through the courts with the aim of demonstrating that Trump violated the law on Jan. 6 and during the weeks leading up to that fateful day. Seven U.S. Capitol Police officers filed a lawsuit Thursday against Trump, the Stop the Steal rally organizers, and others, alleging that they bear responsibility for the Capitol violence and are thus responsible for the injuries suffered by officers. Specifically, the officers accuse the defendants of encouraging White supremacists to attack the capitol.
Similarly, in March, two police officers, James Blassingame and Sidney Hemby, sued Trump for the injuries they sustained, accusing the former president of directing the rioters to attack the Capitol. I talked about that in a video and blog post called Blassingame v. Trump, and I pointed out why that case is so bad for Trump. If you missed it, you might want to see that one.
Rep. Eric Swalwell, D-Calif., has also sued Trump and several associates in D.C. federal court, alleging that Trump and his co-defendants violated the Ku Klux Klan Act by conspiring to interfere with the Electoral College count.
Discovery in civil cases is broad. The federal rules of civil procedure provide several ways for plaintiffs to get information, including interrogatories, depositions and requests for admission. Parties can also compel third parties to give them access to documents.
In other words, these defendants will be entitled to the same documents and testimony the select committee is demanding.
So, one way or another, the facts will come out.
Yes, the wheels of justice turn slowly. There are good reasons for the protections and procedures that slow things down. Rule of law, after all, requires procedures for fairness. There will be motions and responses and intermediary rulings, but if Trump and other members of his inner circle and staff bear legal responsibility for inciting the violence, we’ll find out.