The Jan. 6 incitement case against Trump only gets stronger


In the wake of devastating testimony from an aide to his chief of staff, will the Justice Department indict former President Donald Trump?

When it comes to cases that implicate electoral politics, particularly involving the incumbent administration’s partisan adversaries, the DOJ’s presumption should be against indictment. That presumption can prudently be overcome only if there is crystal-clear evidence of a serious crime. This is not a situation calling for prosecutorial “creativity” or charges involving close factual calls or abstruse legal theories. 

As former Attorney General Bill Barr has observed, if DOJ is going to intrude on politics, it needs to be a “meat and potatoes” crime. Otherwise, the public, and especially the party out of power, will reasonably construe an indictment as a politicized weaponization of law enforcement, rather than the due administration of justice. This would quickly devolve into a downward spiral of revenge prosecutions. This would badly damage both our politics and DOJ as a rule-of-law institution.

On the other hand, no one is above the law. The Constitution explicitly recognizes that impeachment is not the only potential penalty for a president who breaks the law. Prosecution in court is also permissible.

Cassidy Hutchinson, former aide to Trump White House chief of staff Mark Meadows, testifies to the House select committee investigating the Jan. 6 attack on the U.S. Capitol continues to reveal its findings of a year-long investigation, at the Capitol in Washington, Tuesday, June 28, 2022.
Cassidy Hutchinson, a former aide to Trump’s White House chief of staff, testified that Trump tried to overpower his Secret Service detail to join his supporters during the riot.
AP/Jacquelyn Martin

Permissible, though, is different from prudent. It has to be a strong case to merit indictment. Does the evidence against Don­ald Trump meet that standard?

It appears to be getting stronger, although we must bear in mind that the FBI and DOJ surely know much more about the evidence than what is known publicly.

The significance of White House aide Cassidy Hutchinson’s testimony is that it shows Trump knew, in the moments before he took to the podium to give his rambunctious Ellipse speech, that the mob was armed to the teeth, including with firearms. He is said to have been furious at the use of magnetometers — it thinned the crowd around the podium, which was not the optic he wanted. He railed at his aides to let people in, even if they were armed and dangerous, because they were “no threat to me.” That is, he knew they were a threat to someone — namely the government officials at the Capitol. He demanded that they be let in and said that they could then “march to the Capitol.” 

He knew an armed mob would be headed to the Hill. Yet, he intentionally whipped them up with his speech. What’s more, he intended personally to lead the protest march. The patent purpose was to intimidate.

What are the charges?

There is a lot of chatter about whether Trump committed the rarely invoked federal crime of incitement. After all, he paid lip service to the need to be “peaceful” even as he urged the mob to “fight.” This issue is a distraction. 

President Donald Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington on Jan. 6, 2021.
Trump spoke during a rally protesting the Electoral College certification of Joe Biden as President in Washington, DC on Jan. 6.
AP/Evan Vucci

The question is not whether Trump’s speech, per se, is a crime — it’s probably not (which is why incitement doesn’t fit). The question is whether Trump’s speech is evidence of other crimes, which is the way speech is commonly used by prosecutors.

It is a serious federal crime to intimidate government officials with the threat of force or aid and abet others in doing so. No use of force is legally necessary, though plenty of force quite predictably broke out at the Capitol.

Moreover, it is a crime to corruptly obstruct congressional proceedings. Trump may have committed this offense two ways. First, by touting a legal theory he knew was bogus to derail Congress’s count of electoral votes. That’s no meat-and-potatoes crime — it gets into complex issues of Trump’s state of mind and would dangerously set the precedent that frivolous legal arguments (which are common) are felonious.

In this Jan. 6, 2021, file photo, Trump supporters gather outside the Capitol in Washington. Some people charged with storming the U.S. Capitol on Jan. 6 are claiming they were only there to record history as journalists, not join a deadly insurrection.
Trump knew an armed mob would be headed to the Hill, testimony from his aids state.
AP/John Minchillo

But the second obstruction possibility is more basic: Trump knowingly and willfully exhorted an armed mob to descend on the Capitol for the purpose of corruptly influencing how members of Congress would conduct the constitutionally mandated electoral count. That’s a rudimentary offense. Everyone in America knows it’s lawful to influence Congress with provocative speech and edgy legal claims, but it is never lawful to influence lawmakers by the threat of force.

Aiding and abetting the forcible intimidation of federal officials is a felony. In a case where the threat was real but not terribly serious, the penalty is up to a year’s imprisonment — but where we are talking about intimidation involving dangerous weapons, the potential penalty can run up to 20 years. And similarly, the penalty for obstructing congressional proceedings is up to 20 years of incarceration.

The stronger the evidence becomes that Trump intended to use the intimidating threat of armed violence to his advantage, the higher the likelihood that he will be indicted.

Andrew C. McCarthy is a former federal prosecutor.


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