From the moment the attack on the Capitol began, on January 6, 2021, Donald Trump’s moral culpability was clear. That mob would never have assembled on the National Mall but for Trump’s decision to relentlessly lie about the results of the 2020 election.
His legal culpability, however, was more ambiguous. We did not possess any evidence that he directly coordinated with the rioters prior to the invasion of the Capitol, and although his speech to the mob on January 6 itself admonished his followers to “fight like hell” and warned them that “you will never take back our country with weakness,” it also contained an explicit statement that they should march to the Capitol to “peacefully and patriotically” make their voices heard.
Also hovering over the legal analysis was a prudential calculation. Former presidents shouldn’t be prosecuted under novel legal theories. If the government is going to prosecute, it should bring a case that’s easy to justify under existing precedent. Otherwise, the prosecution itself could be dangerous, further fracturing and destabilizing an already fragile American political culture.
Those considerations are precisely why Trump’s conduct in the case of Georgia had seemed more obviously to involve potential criminal liability than his actions on January 6. In Georgia’s case, Trump was recorded telling Secretary of State Brad Raffensperger, “I just want to find 11,780 votes,” and then explicitly threatening Raffensperger with criminal sanctions if he didn’t accede to the president’s demand.
Georgia criminal law appears on point. Its relevant criminal-solicitation statute states:
A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.
And which felony was Trump soliciting Raffensperger to commit? Among the most applicable is Georgia Code Section 21-2-566, which prohibits willfully tampering “with any electors list, voter’s certificate, numbered list of voters, ballot box, voting machine, direct recording electronic (DRE) equipment, electronic ballot marker, or tabulating machine.”
Indeed, at the request of Fulton County District Attorney Fani Willis, a special grand jury has been empaneled in Atlanta, and it is actively pursuing an investigation of Trump’s actions. On June 2, it questioned Raffensperger, and it has issued subpoenas to a number of other local officials.
Even as the Fulton County district attorney looks into possible violations of state criminal law, Trump’s conduct regarding Georgia also implicated federal law. Most notable is his apparent violation of 18 U.S. Code Section 241, a law that prohibits a “conspiracy against rights,” which can include voting rights. As I’ve noted before, prior courts have found unlawful any effort to prevent the counting of ballots, failure to count votes, alteration of votes already counted, or changing of votes cast at voting machines.
Given the legal ambiguity about Trump’s misconduct on January 6 and the clarity of both the evidence and the law regarding his efforts in Georgia, I’ve always thought that he faced greater legal jeopardy in the less spectacular case. Until yesterday, that is. Until Cassidy Hutchinson, a former aide to Trump Chief of Staff Mark Meadows, delivered riveting testimony to the January 6 select committee.
The claim of most direct legal significance came when she described hearing Trump demand that the Secret Service remove magnetometers (or “mags”) that were screening the crowd for weapons. The area directly in front of his podium was not entirely full and, Hutchinson said, he wanted it filled for the sake of “the shot,” or photograph of the speech.
Even though Trump was warned that the crowd possessed weapons, Hutchinson testified that he said, “I don’t f-ing care that they have weapons. They’re not here to hurt me. Take the f-ing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the f-ing mags away.”
Why is this so important? Since a 1969 case called Brandenburg v. Ohio, the Supreme Court has sharply limited prosecutions for speech that allegedly incites violence. In Brandenburg, the Court tossed out the criminal conviction of a Ku Klux Klan leader who had called for a march on Washington, D.C.; Florida; and Mississippi and threatened “revengeance” if the president continued to “suppress the white, Caucasian race.” The Court held that speeches threatening violence or disorder were protected by the First Amendment unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
In a later case called Hess v. Indiana, the Court threw out a disorderly-conduct conviction for an anti-war demonstrator who was arrested after stating, “We’ll take the fucking street later (or again).” It reasoned that Hess’s words were not “intended to produce, and likely to produce, imminent disorder.”
Let’s apply this test to Trump and January 6. We know that he directly summoned the mob with his tweet on December 19, 2020: “Big protest in D.C. on January 6th. Be there, will be wild.” We know that he directed his supporters to march on the Capitol, but we now also have evidence that he knew they were armed and that he did not believe they were a threat—to him. Then, once the attack on the Capitol was under way, he further inflamed the crowd by tweeting, “Mike Pence didn’t have the courage to do what was necessary.”
In a series of messages on his social-media site yesterday, Truth Social, Trump denied Hutchinson’s claims. But his denials were on an app. Her allegations were under oath.
The available evidence now tilts strongly toward the claim that Trump’s words were indeed “intended to produce” and did in fact produce “imminent disorder.” Yes, his speech still contained the admonition to march “peacefully and patriotically,” but that is thin gruel for the defense in the face of the other language in his speech and the totality of the circumstances.
It’s bigger than you and me. It’s about these monuments and what they stand for. This has been a year in which they have invaded our freedom of speech, our freedom of religion, our freedom to move, our freedom to live. I’ll be darned if they’re going to take away our free and fair vote. And we’re going to fight to the very end to make sure that doesn’t happen.
Republican Representative Mo Brooks of Alabama also stood before the crowd on January 6 and said:
Our ancestors sacrificed their blood, their sweat, their tears, their fortunes and sometimes their lives to give us, their descendants, an America that is the greatest nation in world history. So I have a question for you—are you willing to do the same?
The crowd was known to be armed, had been deliberately worked into a frenzy, and was then knowingly sent straight to the Capitol. As I wrote last night, in this context Trump’s request that the crowd march on the Capitol peacefully “looks more like pro forma ass-covering than a genuine plea.”
There is much more to investigate, including whether Trump worked directly or through proxies with the Proud Boys and others who led the invasion of the Capitol and have been charged with seditious conspiracy. In addition, in her questioning of Hutchinson, Republican Representative Liz Cheney of Wyoming raised the possibility that Trump’s allies were attempting to influence witnesses by contacting them and reminding them that Trump read transcripts and that, in the words of one witness, being a “team player” would help them “stay in good graces in Trump World.”
As the investigation continues, the possibilities for prosecuting Trump are expanding. In addition to the Georgia investigation, the January 6 committee has produced evidence bolstering the case that Trump incited the violent attack on the Capitol. He was already in direct legal jeopardy in Georgia. Now we can add federal court in Washington, D.C., to the list of places where Trump faces the possibility of a serious and credible criminal case.