The Criminal Case Against Donald J. Trump Has Been Established, But Will the Garland Act?

Thursday's final hearing of the January 6 committee is a segue to the criminal case that federal prosecutors are piecing together, bolstered by the recent issuance of dozens of grand jury subpoenas and court-authorized searches of some of Donald Trump's top allies.

The committee voted unanimously to subpoena Trump to answer questions before the committee under oath. Elizabeth Cheney, committee vice-chairman, said "he must be accountable. He is required to answer for his actions." But subpoenaing Trump seems largely a symbolic gesture -- unless Trump decides he wants to present "his side" to the American people and is prepared to lie up the wazoo, regardless of legal consequences. Although the legal issues involved in subpoenaing a former president may pass legal muster, the length of time it would take to litigate the issue will all but certainly carry on beyond the select committee's tenure, which ends in January.

Thursday's hearing provided the final piece of the puzzle for making a criminal case against Trump: his state of his mind--what he knew and intended in committing at least two federal crimes: 18 U.S.C. 371, conspiracy to defraud the United States, and 18 U.S.C. 1512, obstruction of Congress. The issue of criminal intent will be central to any criminal trial.

Thursday's hearing comes 27 days before a critical midterm election in which most Republican candidates deny that Biden won the 2020 presidential election--not because of any credible evidence but solely because Trump has continued to make the baseless claim that he won, and has convinced almost two-thirds of Republican voters of that Big Lie.

Recap of the first seven hearings:

Thursday's hearing recapped much of the first seven hearings, including:

• An Oval Office meeting on December 18, where Trump had to choose between what Trump's campaign manager Bill Stepien called "Team Normal" and what some Trump advisers called "Team Crazy." In that "unhinged" meeting, "Team Crazy," including Trump lawyer Sidney Powell and former national security adviser Michael Flynn, produced a draft executive order they had prepared where they proposed that the U.S. military seize state election machines. "Team Normal" opposed the plan.
• On December 19, just hours after the draft Executive Order was rejected and the hours-long meeting ended, Trump sent his "will be wild" tweet. The evidence presented made clear that the far-right militia and other figures understood that tweet as a call to violence.
• Michael Flynn and Roger Stone, both of whom Trump had pardoned during the time between the election and January 6, had direct relationships with violent right-wing groups. One rally organizer explained that Trump wanted to surround himself with such people because they were "very very vicious in publicly defending him."
• Trump endangered the safety of Vice President Pence and his family on January 6 by tweeting criticism of Pence, which unleashed the mob to go after Pence, chanting "hang Mike Pence." Trump watched the riots unfold on television for hours without lifting a finger to protect the Vice President, his family, or Members of Congress, despite pleas from Trump family members, White House advisors, and Republican congressional leaders.
• Trump sought to name a Justice Department minion as the new Attorney General who then planned to send letters to Trump-friendly state legislatures alleging widespread fraud in their states - without a shred of evidence. The proposed letters would urge these friendly state legislatures to exploit the "failed choice" loophole in antiquated 19th-century laws and substitute their own Trump presidential electors for the Biden electors that had been chosen by the voters on Election Day. Trump's own top Justice Department officials killed this scheme to steal the presidency.

Thursday's hearing:

Thursday's final hearing also presented damning new evidence about Trump's state of mind. As committee vice-chair Liz Cheney stated: "Today we will focus on his state of mind. Trump had a premeditated plan to claim the election was stolen before Election Day. Trump was better informed about the absence of widespread election fraud than almost any American."

The committee then showed evidence that:

1. Trump concocted his plan long before Election Day. Knowing that mail-in votes would be more likely cast for Biden and would not be counted until possibly days after Trump had taken the lead on Election Day, Trump planned to give a false election victory speech on the evening of Election Day. Even though the networks were starting to call the race for Biden, Trump declared victory and demanded that voting counts stop. "This is a fraud on the American public, an embarrassment to our country. We were getting ready to win this election, we did win this election."

2. Trump knew he lost. He also knew that there was no evidence of fraud or irregularities sufficient to change the outcome. In none of 62 court cases was he able to establish election fraud. His Attorney General told him there had been no fraud. His advisors repeatedly told him there was no evidence of fraud sufficient to change the outcome. The Supreme Court rejected his case on December 11. Electors voted on December 14. His senior staff advised him to concede. Nonetheless, Trump's intended to ignore the rule of law to stay in power.

3. Trump was personally and directly involved in a plan to remain in power, regardless.

(1) He knew he was lying when he told the public that Dominion Voting machines were rigged against him, when he told the public there were more votes than voters, and when he told the public about a "vote dump" in Detroit. He purposely and maliciously repeated these lies to the public over and over again.

(2) He knew his allegations of fraud in Georgia were false. But he nonetheless sought to pressure the Georgia secretary of state Brad Raffensperger into giving him the votes he needed, saying "I want to find 11,780 votes." When the secretary of state demurred, Trump threatened that he'd be prosecuted.

(3) He also tried to pressure election officials in Arizona and Michigan, knowing he lost those states.

(4) Knowing he lost the election, he also pressured the Justice Department to change the results of the election until Justice Department officials threatened mass resignation.

(5) He sought to replace real Biden electors with fake Trump electors on January 6. He knew this was illegal.

(6) He tried to get Vice President Pence to unilaterally disregard the electoral count. Trump knew this was illegal.

(7) He intentionally summoned his supporters to the Capitol, and then, knowing they were armed, intended that they march to the Capitol.

(8) Even before his Ellipse speech, he knew there would be violence. He knew people coming to Washington planned to attack the Capitol and that multiple users online were targeting members of Congress. The Secret Service had this information at least 10 days before the attack. On January 6, during his speech on the Ellipse, Trump knew the crowd was armed and dangerous.

4. Even when Trump knew about the violence unfolding at the Capitol on January 6, he refused to call off the mob.

Next steps?

This is probably the last of the committee's hearings. If Republicans succeed in their drive to win the House majority (which seems likely), they will almost certainly disband the committee in January and shut down any official accounting by Congress for the largest attack on the Capitol in centuries.

This means the panel has less than three months to finish up its investigation, write and release its final report (likely in December), make any legislative recommendations, and decide whether to make a criminal referral to the Justice Department.

The January 6 committee, led by Chairman Bennie Thompson (D-MS) and Vice Chair Liz Cheney (R-WY), has done America a great service -- giving the nation exactly what it has most needed: an accounting of what occurred January 6, why it occurred, and Trump's role in it.

Whether this will lead to Trump being held criminally accountable does not depend on the committee making a criminal referral. Regardless of whether it makes such a referral, that decision is solely up to the U.S. Attorney General, Merrick Garland (who would now be sitting on the Supreme Court had it not been for Mitch McConnell and a Republican Senate majority).

But the committee's work -- its investigation and its public hearings -- have played a part in persuading Garland to move forward with a criminal case against Trump. If you'd asked me six months ago, I'd have said Garland would not do so, for fear of dividing the nation even more deeply. Now, I believe he will.