The old bait and switch
and other juicy but not very relevant evidence from the Jan. 6 Committee
Yesterday’s hearing of the January 6 Committee produced the usual mixture of headline grabbing testimony of no legal relevance and a few bits of testimony that might be useful pieces of circumstantial evidence in a criminal case against Donald Trump, if the Department of Justice decides to bring one.
The main headline grabber was testimony about a meeting at the White House on December 18. 2000. At the meeting, Sidney Powell, Michael Flynn, another guy, and later Rudy Giuliani tried to persuade the president to have the feds seize voting machines and appoint Powell special counsel to investigate election fraud. When White House staff members learned of the meeting, Pat Cipollone, the White House counsel, and others intervened to express strong opposition to this plan.
The result, according to witnesses from both camps, was hours of shouting and profanity. White House attorney Eric Herschmann testified that he challenged Flynn to a fight after the retired General called him a “quitter.”
Juicy stuff, but what’s the relevance? We already knew there was a huge divide between what the Giuliani-Powell camp wanted Trump to do and what his White House team of lawyers was advising. And we know that Trump did not have voting machines seized and did not make Powell a special counsel.
We can also surmise that there have been knock-down-drag-out arguments at the White House in previous administrations.
The Committee tried to tie the White House dustup to the events of January 6 by noting that, immediately afterwards Trump tweeted: “Big protest in D.C. on January 6th. Be there, will be wild.”
The claim is that, as a result of the December 18 meeting, Trump gave up on the ideas presented by Powell, etc., decided instead to adopt the strategy of having Mike Pence block certification of the election, and called a “mob” to Washington to pressure Pence.
But we already knew that Trump adopted the Eastman strategy and called on his followers to come to D.C. for a “wild” protest. It’s immaterial, I think, that Trump did so because he decided not to follow Powell’s advice or was frustrated that his White House advisers had interfered.
Nor did Trump, in fact, give up in December on the strategy of investigating election fraud. In late December and early January, Trump wanted the DOJ to conduct such an investigation. If top DOJ leaders resisted, as they had been doing, the plan was to have Assistant Attorney General Jeff Clark take over the department. In that scenario, Clark would have have filled essentially the role Powell had volunteered for.
A less sensational headline grabber was evidence that Trump planned all along to have protesters at the Ellipse march on the Capitol, but hid this plan from his followers. The Washington Post made this evidence its top headline in today’s edition: “Trump hid plan for Capitol march on day he marked as ‘wild’, panel says.”
Evidence of such a hiding of intentions brought back personal memories. In 1969, I was part of a group of less than a dozen radicals who wanted to take over the Dartmouth administration building to protest the war in Vietnam.
Our plan was to call a general protest meeting that would draw hundreds of anti-war students. One of us (not me) would deliver a fiery speech and, with the crowd riled up, call on it to take over the building.
More than 50 of us did take it over, and we served a fair amount of jail time for it. I know that many of those who participated had no intention of violating the law when they came to the meeting. They were just swept up. We induced them to commit a crime.
I’m sure we weren’t the first radical protesters to pull this switcheroo. It’s a tried and true (or false) tactic of radicals everywhere.
It speaks poorly of Trump that he resorted to it, but I don’t think he committed any crime by doing so. The difference between what Trump did and what we did at Dartmouth is that we called on the crowd to take over the building, which was illegal. Trump didn’t. He just called on it to march to the Capitol “peacefully and patriotically.”
I’m pretty sure it’s not illegal to ask protesters to march to the Capitol unless your intent is to have it engage in violence or other unlawful conduct along the way or once there. So far, there is evidence that suggests this might have been Trump’s intent, but none that shows it to be.
The Committee presented evidence that leaders of radical far-right groups knew of Trump’s intention to bring the crowd to the Capitol. For example, Ali Alexander, an organizer of Stop the Steal, sent a text message saying, “Trump is supposed to order us to the capitol at the end of his speech but we will see.”
This evidence suggests that Trump’s team was coordinating with leaders of groups that supplied foot soldiers for the storming of the Capitol. However, it stops short of showing a plan to storm it, as opposed to just marching there. In addition, we don’t know for sure that Trump was behind the communications to Alexander and other far-right leaders.
Rep. Stephanie Murphy, who took a lead role in yesterday’s hearings, says the new evidence “confirms that this was not a spontaneous call to action, but rather a deliberate strategy decided up in advance by the president.” But what does she mean by “this”? A march to the Capitol? Yes. An attack on it? Very possibly, but the evidence so far doesn’t make that case.
Murphy acknowledged yesterday that during Trump’s speech on the Ellipse, he told the crowd to be peaceful. This, I believe, is the first time anyone at the hearings has mentioned that statement.
Murphy dismissed it by pointing to all the inflammatory things Trump said in his speech. She’s right that the speech, taken as a whole, made the crowd angry, thus increasing the likelihood of violence. In my view, it’s a speech that never should have been given at a rally that never should have occurred.
But from a legal standpoint, I don’t see how one can simply brush aside Trump’s admonishment to be peaceful if one is fairly evaluating whether he intended that the Capitol be stormed or that the mob commit other unlawful actions.