Starting with this backdrop, investigators would next want to determine whether the president was aware of his supporters’ plans to use violence, if necessary, to “stop the steal.” Investigators would analyze the president’s tweets and public statements to see if they correlated—temporally and substantively—with social-media posts, public statements, and “Stop the Steal” rallies calling for insurrection, civil war, and other extreme measures. They’d take note of his post-insurrection comments as well, including his assertion Tuesday that his January 6 speech was “totally appropriate.”
Investigators would want to know what kind of briefings the president was given before January 6, and before other “Stop the Steal” demonstrations. Was he told about the threats of violence? Was he told about the intent to encircle and occupy the Capitol? Did he call on his supporters to “fight like hell” after learning that some of them were planning to bring firearms and other weapons to D.C.?
Investigators would want to obtain the president’s internet and social-media history—does it establish that he viewed content agitating for violence at the Capitol? Whether properly briefed on the threats or not, his own social-media use could give investigators clues as to his knowledge and intent at the time he encouraged the crowd to “never give up,” “show strength,” and “stop the steal.”
James Fallows: Time for consequences
Business records—phone, email, and financial—could also be telling. Did the president or any of his surrogates have contact with any of the organizers or participants in the siege? Were there any monetary transactions that reveal connections?
And investigators would want to talk with those in the president’s inner circle (as well as those such as Georgia Secretary of State Brad Raffensperger, whom he attempted to coerce into committing election fraud). What was he saying about the will of his supporters? Did his comments reflect an intent to encourage the crowds that have shown up at state capitols and election offices protesting—sometimes with threats of violence—what they had falsely been led to believe was a fraudulent vote count? Did he say anything to suggest his desire for the demonstrators on January 6 to physically invade the Capitol and prevent the certification of the Electoral College results? To harm Vice President Mike Pence? What was the president’s reaction when he saw what was happening? Did he indicate that the mob had done just what he wanted?
Some people may wonder about whether some of this evidence would be protected by executive privilege and whether Trump would be protected from prosecution by presidential immunity, but neither of these protections is absolute, and constitutional separation-of-powers principles do not put the president “above the law,” no matter how much he may wish them to. Criminal prosecution ultimately may not be attainable, or desirable, but we won’t know until there’s an investigation.