As the January 6 hearings commenced, an old and trusted friend commented to me that he thought only the production of a smoking gun would be likely to change any minds in our current calcified, hyperpartisan political climate. Many pundits have echoed that opinion.
Yes and no, say I.
We all understood going in that for the roughly 30% of Americans who would push their own mothers off a cliff if Donald Trump told them to, nothing—nothing!—will change their minds about the Insurrection or The Former Guy’s culpability for it. Not even a smoking gun. In his hand. On video. With Trump shouting, “I did it.”
Because the fact is, there has been a smoking gun in plain view ever since that tragic afternoon itself—a smoking cannon, in fact. A 155mm self-propelled howitzer. A Gerald Bull-style Supergun that can launch a Volkswagen-sized satellite into outer space.
We’ve known all along that the Insurrection was no spontaneous riot, no church picnic that got out of control, no false flag operation, but a well-planned, coordinated attempt by the Trump campaign to use political violence as part of an effort to stop the count of electoral votes and steal the election for their guy. And it came at the end of a months-long (even years-long) Republican effort to undermine confidence in the results of the election full stop, thereby creating circumstances that would enable Trump to stay in office. That was all painfully evident to anyone who lived and breathed in America during the last presidential campaign, and who watched events unfold that January afternoon, and who was not guzzling Fox Brand Kool-Aid. As was Donald Trump’s fundamental responsibility for all of it.
To use the legal formulation, if not for Trump, those people who stormed the Capitol do not come to DC, do not mass on the Ellipse, do not get worked up into a foaming-at-the-mouth frenzy, do not march on the People’s House, do not erect a gallows to lynch Mike Pence, do not beat law enforcement officers with Blue Lives Matter flags, do not breach the building, do not roam its halls chillingly calling out Nancy Pelosi’s name in order to murder her, and so on and so forth. As the Internet meme goes, on January 6, 2021 a frantic Kevin McCarthy knew who to phone to try to call off the attack, and it wasn’t the antifa or BLM or the FBI. Because he knew who was responsible then and he knows it now.
Man-on-the-street interviews with Trump supporters provide anecdotal evidence of their maddening—but unsurprising—refusal to face the facts. They’re not watching the hearings; they think they’re a witchhunt; the Democrats aren’t interested in the truth, only in hurting Trump; I got better things to do with my time; blah blah blah. Their comments remind me of testimony we heard during the hearings themselves, from reasonable Republican officials describing colleagues who continued to insist that the Democrats had stolen the election even when every claim to that end was definitively refuted, saying, “Yes, but I just know in my heart that they cheated.”
There is no reasoning with such people. This obstinate refusal to reckon with one of the darkest moments in all of American history is sheer tribalism and willful blindness, and all the more dangerous because the emergency is not over but continues to unfold, with the ongoing right wing attempt to sabotage our representative democracy.
What’s that you say? I am obviously deeply tribal myself? Guilty as charged. Except that my tribe has the facts on its side. Check back with me when Biden supporters storm the Capitol to try to overturn an election.
So, yes, not even a smoking gun produced by the January 6th committee will change the minds of a third of America, but these hearings were never intended to persuade Trump’s immovable deadenders. What the committee has done with the hearings, however, is a public service of the absolute highest order nevertheless, one whose repercussions are three-fold. Let’s take them in reverse order of importance.
First, the hearings will likely sway a small sliver of middle-of-the-road voters, who were crucial in 2020 and will be again this November, and again in 2024, and convince them that Donald Trump and indeed the whole GOP have no business holding power in this country. (That is, if Republicans have not by then succeeded in gaining a total chokehold on the electoral process.)
Secondly, the hearings have made the case for history, and before you scoff at the alleged uselessness of that, let us remember that history’s verdict will be the most enduring, with consequences for future generations that reverberate far beyond the next few short-sighted news or election cycles.
And lastly, and perhaps most crucially, the hearings have made it all but impossible for the Department of Justice not to bring charges against the architects of the Insurrection, in the interest of the long-term good of the republic. After hearing the case so powerfully laid down by the House committee, if a violent attempt to overturn an election—carried out by a defeated president marshaling the full powers of his office—is not a crime worthy of prosecution, what is? And if we do not pursue its perpetrators and bring them to justice, are we not opening the door for an imminent sequel?
A BRIEF REVIEW
Before the hearings commenced, defeatism was in the air in anti-Trump circles. The cake-taker may have been David Brooks’ much-discussed New York Times piece titled “The Jan. 6th Committee Has Already Blown It,” which ran even before the very first hearing.
In his defense, Brooks was arguing that treating the investigation of the Insurrection as an exercise in ordinary political campaigning was thinking way too small. But it turns out that the House committee had no such weak tea in mind.
The January 6th Committee has calmly, cogently, and methodically laid out a powerful case that there was an extensive, coordinated Republican effort to overturn the election, culminating in the attack on Congress on January 6th, and that that effort was directed by Trump himself. (Per above, “culminating” is not quite right, of course, as the effort to seize control of the American electoral process continues.)
It has produced eye-popping evidence that even dedicated watchers of the case—among whom I count myself (ask my wife)—were completely unaware, and heart-rending testimony from the likes of Capitol Police officers and innocent election workers like Shaye Moss and her mother Ruby Freeman.
We have seen evidence of Trump’s direct involvement in some of the most egregious aspects of this criminality, including RNC Chairwoman Rona Romney McDaniel’s admission that the RNC helped orchestrate the fake elector plot in coordination with the White House. We learned of how callously Trump handed down a de facto death sentence for his own vice president (“Maybe he deserves to be hanged”), and terrorized frontline election workers. We learned of the extent of the coordination between Trump and GOP officials and brownshirt-style street goons like the Proud Boys and the Oath Keepers to bring physical violence to bear on Congress. We were told of the extraordinary pressure put on state officials to overturn the will of the people, and the scope of the legal maneuvering to try to justify the rejection of the electoral vote. We also learned that Trump’s staunchest advocates on Capitol Hill and within the White House—Gaetz, MTG, Gohmert, Biggs, Gosar, Eastman, et al—sought preemptive pardons, indicating that they knew that their actions were highly illegal.
And on and on.
After the first couple of televised hearings, Washington Post’s Max Boot spoke for many when he wrote:
I admit to having been skeptical, ahead of time…. What more is there to be said, I wondered? The evidence of Donald Trump’s guilt in inciting an insurrection was already so obvious that it was hard to imagine that the committee would have much to add.
I am happy to say I was wrong. The committee’s hearings are exceeding expectations, because it is not behaving like a typical congressional committee. There is no grandstanding and no preening. There are no petty partisan squabbles. There is not even the disjointedness that normally occurs when a bunch of politicians are each given five minutes to question each witness. There is only the relentless march of evidence, all of it deeply incriminating to a certain former president who keeps insisting that he was robbed of his rightful election victory.
The committee’s reliance almost entirely on Republican witnesses—from revered right wing figures like retired Judge Michael Luttig, to many many Trump appointees and former members of the administration itself who finally reached a line even they could not cross—was a stroke of genius. To hear a loathsome Trump accomplice like Bill Barr dismiss the Big Lie as “bullshit,” “crazy stuff,” and “complete nonsense,” and report that for Trump there was “never an indication of interest in what the actual facts were” carries more weight than a thousand speeches by Adam Schiff, with all due respect to the highly honorable gentleman from California.
Boot opined that the testimony of these former Trump’s aides has been “the committee’s most potent weapon.”
One could not script a better scene than the one described by former Trump attorney Eric Herschmann—a member of Donald’s odious legal defense team during his first impeachment—describing his Sorkinian exchange with John Eastman over the plan to mount a coup: “Are you out of your effing mind? I only want to hear two words coming out of your mouth from now on: orderly transition.”
(Close second: Acting Deputy AG Richard Donoghue telling environmental lawyer-turned scheming would-be Attorney General Jeffrey Clark: “We’ll call you if there’s oil spill.”)
But let us not lionize some of these former Trump officials; many of them could have acted much earlier and forestalled this whole chain of events, Mike Pence above all. This testimony would have been quite useful in late January 2021, for example, when Trump was impeached over these very crimes. But credit where it’s due, and two cheers.
(The fact that some of these people, including Barr, Brad Raffensperger, and Rusty Bowers, even now say that they would vote for Trump again in ‘24—or at least would not rule it out, in Raffensperger’s case, like Susan Collins’s—is a mind-blowing matter for another day. Though mere partisan politics is not the point—per Brooks—one can only hope that this shocking litany of Trump’s crimes will convince other less benighted Americans that they ought not vote for him ever again, should the chance arise. For many Republicans, some wit noted, the hearings are playing like a six-part infomercial for Ron DeSantis.)
But worth remembering: the integrity of these officials was the only thing that stood between Trump and a second, illegal term….and is therefore the precise thing that the GOP is dead-set on obliterating as an obstacle to permanent, predetermined electoral victories going forward.
DO THE RIGHT THING
So the case against Donald J. Trump and his disciples has been powerfully made. The question now is, what the Department of Justice will do with it?
For as David Brooks rightly noted (see? I’m defending him), these hearings have not been merely an exercise in damaging the GOP ahead of the midterms and 2024, or even in establishing the case for posterity, important as that is. They have been an attempt to hold a criminal head of state accountable for his sins for the sake of the country’s health and well-being going forward.
So over to you, Merrick.
It is encouraging that even as the hearings unfolded, the DOJ began issuing subpoenas and interview requests to key GOP officials and fake electors in Michigan, Pennsylvania, and Georgia, and raiding the homes of people like Jeff Clark. The signs do point to an aggressive DOJ investigation, even if it is being conducted with Mueller-like operational secrecy, and not coincidentally ramping up with each revelation by the committee. We shall see where it goes. (“I can assure you that the January 6 prosecutors are watching all the hearings,” Garland told the press.)
I want to say that I cannot imagine that after seeing what all of America has seen—evidence that it likely already developed itself, and more—the Department of Justice will not bring indictments at the highest levels.
But I can imagine that. I can readily picture the painfully cautious, “institutionalist” Mr. Garland deciding that it would be too politically incendiary and damaging for the country to indict and prosecute a former president—the same rationale Gerald Ford used to justify his pardon of Richard Nixon, a travesty for which we are still paying today.
It is inconceivable to me that John Eastman, who relentlessly promoted a scheme that by his own admission he knew was illegal, will not be indicted. And Eastman, we all know, served merely at the pleasure of his boss. But I’ve been wrong before.
I can also see Garland electing not to indict Trump on the grounds that he doesn’t think he can get a conviction. That is the kind of strategic decision prosecutors make all the time, and he may even be right about that. But in this case, and in this layman’s humble opinion, it would be a woefully misguided decision with terrible consequences for the republic and the rule of law we flatter ourselves that we live under.
Like Trump’s impeachments—both of them—a criminal prosecution of Donald Trump is an essential duty of the body politic, even if the chances of a conviction are not as airtight as prosecutors would like in normal circumstances. But hell, in normal circumstances, with evidence like this, a conviction would be nearly a slam-dunk. The only reason it ain’t necessarily so in this case is the uncharted waters in which we would be venturing in putting a former president on trial, and the Bizarro World / up-is-down / day-is-night hyperpartisanship of America as we now know it, such that getting twelve jurors to agree that puppies are cute is a longshot if Donald Trump is weighing in with his opinion.
Lest we forget, acquittals in both of Trump’s impeachments were all but certain. Yet despite those nearly foregone conclusions, we wisely went through with them anyway. What was the alternative? To throw up our hands and say, “Oh well, no point even trying, since the GOP’s gonna stonewall us. What are you gonna do?”
If I am not mistaken it was former US Attorney Harry Litman who quipped that, when faced with an ex-president credibly accused of crimes on the scale of Trump’s, the only thing worse than trying him would be not trying him. (The Washington Post’s Eugene Robinson makes that same point very well here.)
SMOOTH JAZZ, OBVIOUSLY
As the evidence against Trump accumulates, a great many observers have seized on the possibility that he is, in effect, fucking crazy, and therefore his actions—while terrible—were not motivated by criminal intent, because he truly believed that the won the election. As a legal defense it’s a stretch, but was given a handhold by the testimony of Bill Barr, who opined that Trump had “become detached from reality if he really believes this stuff.”
On that front, many wags have cited the gospel according to George Costanza—the Picasso of liars—before his pal Jerry undergoes a polygraph in an attempt to prove (falsely) that he has never seen “Melrose Place”:
“Jerry, just remember: It’s not a lie if you believe it.”
Luckily, numerous legal scholars have already demolished that specious argument, under which almost no criminal behavior is possible whatsoever.
“Willful blindness” is not exculpatory. You cannot rob a bank and be excused because you felt it was within your rights to do so. You cannot steal the Stanley Cup and run around Manhattan with it just because you don’t accept that the Rangers got beat in the Eastern Conference finals. You can’t pilot an airplane with five martinis in your bloodstream, crash it into a mountain and kill everyone onboard but yourself, and be acquitted because you were genuinely convinced that alcohol didn’t affect you.
(In The Bulwark, Will Saletan argues that it’s actually worse if Trump really did believe his own bullshit. I would agree it might be more dangerous, unpredictability wise—pressing the nuclear button wise—but it’s not worse, morally speaking.)
The fact is, the committee made a compelling case that Trump was not in fact that self-deluded, that he had been repeatedly told by his own advisors that there was no election fraud, that Biden had won fair and square, and that his continuing push of the Big Lie was both incorrect and illegal. Under the law, Trump cannot then turn around and in good faith claim simply not to believe it and employ that as a get-out-of-jail-free card.
When it comes to intent, don’t you think telling the acting Attorney General ““Just say the election was corrupt and leave the rest to me and the R. Congressmen” covers it? (After all, exploiting a fake investigation is one of Trump’s favorite moves, from Comey to Kyiv.)
But all of that sort of misses the point, as beautifully argued, also in The Bulwark, by Mona Charen.
Charen notes that, “in our age of post-truth politics,” the crucial Watergate-era query—What did the president know, and when did he know it?—“shrivels into a dry cinder.” Asking whether Trump sincerely believed he had won the election, she argues, is “the wrong way to look at it.”
In the first place, the tangle of loose wires, celebrity gossip, Putin-worship, grade school taunts, and world-class vapidity that forms Trump’s mind is impossible to penetrate. We are, to our sorrow, quite familiar with his indifference to truth. When it comes to a person who has lied about American Muslims celebrating the fall of the Twin Towers; told the country that COVID was like the common cold and was “disappearing;” lied about why he fired James Comey; and lied even about the paths of hurricanes, we are dealing with someone whose lies are a constitutive part of his psychology. And everyone knows this.
Charen reminds us that all along, “Part of Trump’s project was to obliterate the truth, to ‘flood the zone with shit,’” in the memorable words of professional troglodyte Steve Bannon. In contrast to Nixon, “absolutely everyone in (Trump’s) circle and everyone in the Republican party who made their peace with him as leader had been lied to repeatedly. Trump had so warped the people around him that there was no expectation of honesty or integrity.”
Did he know that the election was not stolen or did he sincerely believe that it was? What does it matter? What is sincerity in the mind of a man who lies with every exhale? Asking whether Trump knew the election was free and fair is like asking whether a komodo dragon prefers smooth jazz or hip hop. It’s a category error.
As many have observed, in retrospect, it was a horrific own goal by Kevin McCarthy in refusing to have GOP participation in the January 6th committee, notwithstanding the excommunicated Liz Cheney and Adam Kinzinger. Even Trump knows that. Nancy Pelosi wisely refused to let Kevin put human hand grenades like Jim Jordan and Jim Banks on the committee, so Kevin petulantly took his ball and went home. (After scoring the own goal. Or maybe that was the own goal. Before the hand grenades went off. I’m still working on the metaphor.)
Let’s just settle on calling it political malpractice.
In any case, the net result is that this has been a sober, grownup proceeding, laser focused on demonstrating the irrefutable truth, rather than the usual audience-alienating partisan food fight. To that end, the complaints of “onesidedness” by Trump, right wing pundits, and even those aforementioned men-and-women-on-the-street inadvertently reveal the weakness of Trump’s position.
In the WaPo, Greg Sargent notes that “It’s darkly amusing that Republicans see McCarthy as their problem here,” pointing out that Republican complaints about McCarthy are themselves “a pernicious form of spin (implying) that there exists an alternate set of facts being suppressed by Democrats, one that would weaken the revelatory force of what we’re learning about Trump and his co-conspirators.”
“What’s really irritating Republicans,” Sargent writes, “is that they’ve been deprived of the opportunity to pollute the media environment and muddy up the harsh truths coming to light with obfuscation, misdirection and lies.”
Everyone is entitled to a defense, of course. But we are not required to pretend there is an alternate, possibly exonerating set of facts that is being suppressed when there isn’t one. The very suggestion is itself more gaslighting. And because news accounts don’t state this plainly, coverage of Trump/GOP criticism of McCarthy unwittingly advances GOP spin about this supposed alternate story that isn’t being told.
Sargent argues that “Many—or even most—Republicans have simply ruled out the option of grappling straightforwardly with what Trump did.” What, he asks, would they have said if they had been on the committee?
Would they have said Trump wasn’t actually informed that the scheme he was pressing for was illegal? That he really believed he had won in 2020? That he didn’t know the mob was violent before pointing it like a howitzer at his vice president? That he actually believed exactly enough ballots could be “found” in Georgia to allow him to prevail by precisely one vote?
Here’s a better guess: Because the case against Trump on those fronts is so strong, Republicans on the committee wouldn’t have even tried to “defend” him against it. Instead, they would have engaged in endless obfuscating antics.
Lastly, Sargent reminds us that before the hearings we were assured “that Trump allies would ‘counter-program’ them. Yet they’ve been largely silent. If there were a genuine fact-based defense available to them, we’d be hearing it.”
I FOUGHT THE LAW
In the end, the question is very simple: Did Donald Trump conspire to defraud the United States and interfere with a legitimate federal proceeding, which is to say, the certification of the results of the Electoral College?
The only credible answer is: Hell yes.
Short, perhaps, of recklessly bringing on a nuclear war, there can be no greater crime for a President of the United States. If we allow it to go unpunished, we will have written our own death sentence as a democracy.
In a piece for The Atlantic bluntly titled “The January 6th Committee Is Not Messing Around,” Quinta Jurecic of the Lawfare blog duly notes that the committee knows that part of its job is to put pressure on Garland and the DOJ. But she also reminds us that “the select committee’s work is itself a reminder that the Justice Department is not the final arbiter of accountability when it comes to the Insurrection.”
There’s a tendency to treat the elusive possibility of a criminal probe or prosecution of Trump as the ultimate prize—the achievement by which investigatory success can be measured. The select committee, though, is doing something different. Congress can’t bring a legal case against Trump—but it can build a case for liability in the moral and political sense. That is its own worthy project, and it’s one that the January 6 committee is proving itself more than capable of carrying out.
She is quite right of course. Irrespective of what Garland and the DOJ eventually do or don’t do, the American people have been presented with a thoroughly corroborated and indelible portrait of Donald Trump as the worst president in US history, a man who should never have been allowed anywhere near the Oval Office in the first place. (“But her emails.”) That in itself has been a great public service, but it is not sufficient in terms of the consequences Trump ought to suffer—not out of vengeance, but in the interest of the long term well-being of the republic.
Establishing moral liability will not be sufficient to preserve the integrity of our democracy going forward, nor does it mean that we ought to stop pursuing the Holy Grail of accountability within the criminal justice system. In a New York Times piece called “Donald Trump, American Monster,” Maureen Dowd writes: “In his dystopian Inaugural speech, Trump promised to end ‘American carnage.’ Instead, he delivered it. Now he needs to be held accountable for his attempted coup—and not just in the court of public opinion.”
In that same piece, published after only the first night of televised hearings, she also compared The Former Guy to the iconic creation of a certain fictional mad scientist:
Shelley’s monster, unlike ours, has self-awareness, and a reason to wreak havoc. He knows how to feel guilty and when to leave the stage. Our monster’s malignity stems from pure narcissistic psychopathy—and he refuses to leave the stage or cease his vile mendacity.
The House Jan. 6 committee’s prime-time hearing was not about Trump as a bloviating buffoon who stumbled into the presidency. It was about Trump as a callous monster, and many will come away convinced that he should be criminally charged and put in jail.
We are about to find out whether or not crime pays, and whether future presidents will feel free to behave like a creature from a horror movie.
Photo: Former Fox News digital politics editor Chris Stirewalt, who was fired for calling Arizona for Biden on election night 2020, is sworn in before the House select committee on the Insurrection.
Credit: Jabin Botsford/Pool/The Washington Post via AP.
Copy editing by the intrepid Gina Patacca.