If you felt that there wasn’t much fresh ground plowed during Tuesday’s January 6 Committee hearing, you aren’t alone. Like many Americans, you might have come away feeling a bit confused about precisely what points the Committee was seeking to score.
The Committee appeared eager to show it had gained valuable testimony from White House counsel Pat Cipollone, who finally testified privately before the Committee last week. But Cippolone’s statements, at least those featured yesterday, provided no big, new insights.
Rather, they served to confirm what most who are watching already know: that former president Trump’s closest advisers did not believe he had won the election and that “Team Crazy” was in fact aptly named.
As expected, with the help of Cipollone’s testimony, the Committee fleshed out details about the fateful and explosive December 18, 2020 meeting at the White House, where the likes of Sidney Powell and Mike Flynn battled with White House lawyers over whether to have the military seize voting machines and even appoint Powell as Special Counsel to investigate the election.
It also effectively showed how Trump’s tweet later that night became a call to arms for the most violent and extremist groups in the country to gather on January 6.
But much of this already has been reported.
More importantly, neither of these stories, however tantalizing, comprises an actual crime by anyone. After the December 18, 2020 meeting, Trump did not listen to “Team Crazy,” and he never issued the draft Executive Order.
As for the tweet that the Committee claimed launched it all, Trump enjoys a broad right to political speech as the president. How extremist groups might have taken his tweet is not something for which he can be held criminally liable absent far stronger evidence of direct ties to those groups.
The focus on the tweet is not without any legal consequence, however. There is now a decent legal argument that Trump was on notice after his tweet that many of his followers were viewing his call to action as an actual battle cry and were intending to respond violently.
As someone who was obsessively logged on with Twitter, the former president presumably would be aware of the effect his tweet had on his more radical followers. Just as he was on notice on the day of attack that many in the crowd could not get past metal detectors because they were armed, Trump likely was also aware as early as December 19, 2020 that his tweet had ensured that there would be violent elements assembled on January 6.
That was, the Committee noted, part of his plan.
So, What About Those Militia Ties?
If you also were hoping the Committee would drop a bombshell that definitively connected the White House to plans by the Proud Boys and the Oath Keepers to storm the Capitol, you probably came away disappointed. So far, there remains only circumstantial, and not direct, evidence of that connection. The circumstantial evidence is gathering, but it hasn’t broken any dams yet.
The Committee, via Rep. Jamie Raskin (M-MD), walked through the fact that Roger Stone has long-standing ties to the Proud Boys, even having taken their “fraternity creed” pledge of initiation. Stone also employed indicted Oath Keepers as his personal security at various occasions including on January 5 and 6, 2021. He even communicated with their leaders via a secure messaging app and had a chat group called “Friends of Stone” that included them in it.
The Committee made a point in mentioning that it was in possession of encrypted messages from that group. One plausible reason for this may be to signal to potential defendants that it’s time to come forward and cooperate because this is all coming out soon.
Rep. Raskin in fact emphasized in discussing these communications that the Committee’s investigation is on-going.
One of those messages, revealed during the hearing, showed that indicted Oath Keeper, Stewart Rhodes, communicated to the group back in November about state-level “Stop the Steal” events. Rep. Raskin also noted that Rhodes spoke in Washington on December 12, 2020, calling upon Trump to invoke martial law and promising bloodshed if he did not do so.
But besides his portrayal of Rhodes as the dangerous man he is, Rep. Raskin did not reveal much else about the group messages other than to show one message confirming that security would be provided by the Oath Keepers to Stone on January 5 and January 6, 2021. As prosecutors watching the hearings no doubt will note, there are still two big missing pieces to the puzzle.
First, the Committee has not provided direct evidence that people like Proud Boys leader Enrique Tarrio and Oath Keepers leader Stewart Rhodes affirmatively communicated to Roger Stone that they would be attacking the Capitol violently on January 6. Such communications may exist somewhere in private messages between Stone and the militia group leaders rather than in the group chat, but it is unclear whether the Committee or the Justice Department has such communications.
Second, the Committee has not yet provided evidence that, if Roger Stone allegedly was in possession of advance plans by the militias to stage an attack, he in turn communicated those plans to Trump. This second leg will be very tricky to prove directly unless Stone flips on the former president.
The clearest way to that is for Stone to be charged, perhaps after indicted Proud Boys or Oath Keepers implicate him. It’s important to note that the Justice Department, and not the Committee, currently holds most of the leverage with the militia members indicted on seditious conspiracy.
Some of the members, including Oath Keeper Joshua James who was part of Stone’s security detail on January 5, already have taken plea deals and are cooperating with the Department. Whether they will name Roger Stone as part of the conspiracy remains unclear.
New Evidence That Did Move the Legal Needle
With so much focus on the seditious conspiracy and violent attack, some key revelations affecting Trump’s legal exposure on other potential charges might have been easily missed. This is largely because while the Committee presented the evidence, it uncharacteristically failed to provide any clear context for what it all means.
Chief among these was a series of communications, draft tweets, and confirmations that Trump was secretly planning to order the mob to march on the Capitol after the rally at the Ellipse but wanted to spring that on everyone “unexpectedly.” What is the importance of the fact that Trump apparently tried to keep this move hidden?
As media observers like Ben Collins of NBC and Hugo Lowell of The Guardian noted, it seems everyone unofficial, from Ali Alexander from “Stop the Steal” to Alex Jones of InfoWars to political trickster Roger Stone, knew that Trump planned to go “off-script” and order the marchers to head to the Capitol, yet no one official was ever told of this.
This raises one important question: Who let the most dangerous people in on the plan, while keeping the adults in the room in the dark?
Perhaps a more important point was made by Rachel Bitecofer on Twitter, who smartly played the scenario out the other way. “If they had made it clear that Trump's plan was to send his mob to the Capitol then it would have triggered a security response. That's why he hid it until go time,” she observed.
By letting the most radical supporters in on the real plan but hiding it from those who would raise the alarm, word could spread among the people most ready to strike violently at the Capitol while stymying any advance security arrangements.
Seen in this light, Cassidy Hutchinson’s now-corroborated testimony about Trump desperately wanting to head to the Capitol himself after his speech takes on new significance.
Trump’s plan all along was to spread word about the march clandestinely to lieutenants like Alexander, Jones and Stone so that their followers could prepare. Then he could spring the announcement unexpectedly and lead an armed and violent mob for which the police were entirely unprepared.
A second new piece of evidence concerns former chief of staff Mark Meadows. The testimony again came from Cassidy Hutchinson, his former aide.
Hutchinson testified that she perceived Meadows’s goal through all of this was “to keep Trump in office.” According to Hutchinson, Meadows had “very deeply considered the allegations of voter fraud,” but when he had begun to acknowledge that there wasn’t sufficient evidence of it to overturn the election, she witnessed him “start to explore potential Constitutional loopholes more extensively,” which then connected him to “John Eastman’s theories.”
This testimony helps clarify Meadows’ state of mind, which has confounded many observers. At times Meadows seemed to downplay Trump’s more extreme side and even seem troubled, running interference on demands for actual evidence of vote fraud while warning Hutchinson about how things might get “real, real bad” on January 6.
At other times, Meadows appeared to fully endorse illegal schemes like the Eastman plan and side with the White House against the former Vice President. This inconsistent behavior played itself out with the January 6 Committee as well.
At first, Meadows provided a trove of valuable communications to the Committee, but then abruptly shifted gears and refused to cooperate further.
The simpler way to understand this is that, when given the choice between country or Trump, Meadows ultimately chose Trump. When he realized that the Big Lie had no evidentiary support at all, he threw his lot in with the coup plotters to find a way to overturn the election anyway.
This sets him apart from others who walked away from the former president, including Bill Barr, Pat Cipollone, Mike Pence, and even Ivanka Trump. Meadows’ legal exposure has inched up to that of attorneys John Eastman and Jeffrey Clark as one of the co-conspirators who would do anything to keep Trump in power.
So where does all this leave us presently?
If there is any crime with which Trump could be most readily charged, it is not yet seditious conspiracy, which requires someone close to him to flip and bring the receipts. Rather, it is 18 U.S.C. 317, which makes it a crime to corruptly obstruct an official proceeding.
Having failed in the courts, failed with the state legislatures, and ultimately failed to sway Mike Pence to violate his oath of office, and with knowledge of the dangerous and armed forces he had summoned to Washington, Trump hatched a secret plan to lead them on a march on the Capitol where they would put a stop to the counting of the electoral votes.
All that sure sounds like corrupt obstruction.