House January 6 hearings likely to ratchet Donald Trump's legal risk 'up 1 more level,' experts say

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  • Legal experts say the House January 6 committee hearings could deepen Donald Trump's legal woes.

  • Any new information could provide a roadmap for prosecutors and aid civil lawsuits against Trump.

  • The hearings could also serve an important public education role as DOJ investigates January 6.

After months of investigation, the House committee examining the January 6, 2021 attack on the Capitol is taking its findings to primetime Thursday — and planning to put former President Donald Trump at the center of what its staff described as a "coordinated, multi-step" attempt to prevent the peaceful transfer of power.

The House panel has repeatedly acknowledged that it lacks prosecutorial power, its remit focused instead on reckoning with the efforts to overturn the 2020 election and recommending steps to stave off similar threats in the future. But legal experts told Insider that the hearing — the first of six expected this month — could serve as an opening argument of sorts for the case against Trump and deepen the former president's legal exposure from January 6.

"January 6 is the culmination of a very wide-ranging assault on the election. What the hearings are going to do is take it up one more level. It's not just the question of newspaper and media stories, as important as they are. They're going to provide actual evidence — evidence prosecutors can use," said Norm Eisen, who served as counsel for House Democrats in Trump's first impeachment and co-authored a guide to the upcoming hearings titled "Trump on Trial."

"I think it's going to go well beyond what we already know. And that's gonna start with new, never-before-seen evidence that we're going to receive starting in the first hearing," Eisen added. "All those signs are that the evidence is accumulating, and I think it's very likely that the end result of this evidence being put out there will be a state or federal prosecution of the former president."

Trump faces legal jeopardy on multiple fronts in connection with the Capitol attack, with many experts saying the hearings could raise public alarm and reveal damning new evidence about Trump's state of mind — one of the most difficult elements to prove in a criminal case.

The federal investigation into January 6 has given rise to more than 800 prosecutions against alleged members of the pro-Trump mob that stormed the Capitol, and the Justice Department has increasingly closed in on the former president. The Justice Department's investigation has widened to examine the potential culpability of figures involved in Trump's effort to overturn the 2020 election, including members of his orbit who promoted slates of fake electors to obstruct then-President-elect Joe Biden's victory.

Meanwhile, a local prosecutor in Atlanta is investigating Trump's efforts to overturn the election results in Georgia. Brad Raffensperger, Georgia's Republican secretary of state, testified before a Fulton County special grand jury last week as part of that investigation, and he is reportedly in talks to also testify publicly before the House January 6 committee.

Trump is separately facing civil lawsuits from House lawmakers and Capitol police officers who allege that he helped instigate the violence of January 6. A federal judge in February allowed the lawsuits to proceed, rejecting Trump's argument for dismissing the cases.

House Jan 6 panel
Lawmakers on the House January 6 committee will air the inquiry's findings during a public hearing Thursday.Kent Nishimura / Los Angeles Times via Getty Images

The House hearings are expected to feature not only live testimony but also portions of recorded interviews with witnesses in the investigation, including White House officials and Trump's family members. The presentation could shed further light on Trump's state of mind as the Capitol attack unfolded and provide helpful information for those civil lawsuits, legal experts said.

Barb McQuade, a University of Michigan Law professor and former US attorney in Detroit, said the civil lawsuits are relying on the same legal theory used in a case against the organizers of the 2017 "Unite the Right" rally in Charlottesville, Virginia, who were ordered to pay $26 million in compensatory and punitive damages.

"I think we can see similar outcomes in those civil cases, which could be, perhaps, an easier and better way to hold people accountable," McQuade said of the civil lawsuits tied to January 6. "It could be that instead of criminal convictions, civil liability is what ends up holding people accountable. And it could also be that we learn facts that help support those civil lawsuits."

The House committee has left little doubt about its view of Trump's criminal liability. While the panel is reportedly divided over whether to formally refer Trump to the Justice Department for prosecution, the committee said in a court filing earlier this year that it has evidence suggesting the former president and his campaign "engaged in a criminal conspiracy to defraud the United States."

A federal judge in California later said Trump "likely" broke federal law with his efforts to overturn the 2020 election results.

The Justice Department has taken an interest in the House committee's work, requesting transcripts of the panel's closed-door interviews. McQuade said that, with regard to Trump's criminal liability, the former president is "going to be in whatever trouble he's in based on the investigation of the Justice Department."

"But I think we might get in on the story based on an airing of the committee's evidence, and one of the things I'll be looking for is: Is there a connection between the Trump campaign and the physical attack?" she said.

Ahead of Thursday's hearing, a House January 6 committee aide said the panel had amassed a "mountain of new information." A compelling presentation of that information could add to the pressure on the Justice Department and Attorney General Merrick Garland to move more aggressively to hold Trump and his political allies accountable for January 6, legal experts said.

Any consideration of charges against Trump will involve weighing a central law enforcement principle — that "no one is above the law" — against the ramifications of prosecuting a former president, who demands fealty from Republican leaders and maintains a fervent base.  Before taking office, Biden pledged to pull the Justice Department out of the politics and turmoil of the Trump era, but any prosecution of the former president would risk the appearance that his administration was going after a political rival and potential 2024 contender.

Amid those competing pressures, the House January 6 committee's hearings could help lay a foundation for the American public to accept whatever decision the Justice Department makes, said Donald Ayer, who served as deputy attorney general in the George H.W. Bush administration.

Ayer told Insider that he expects the hearings to illuminate Trump's efforts to overturn the 2020 election for "a substantial proportion of Americans who care about our democracy, but presently have only a passing familiarity with the mass of complicated evidence that has been reported up to now."

"This public education function," Ayer said, "will be extremely important in countering the flood of lies that Trump supporters have offered, and in providing a strong base of public support for whatever action the Department of Justice decides to take — including the possibility of indicting the former president — in order to secure accountability for the unprecedented effort to destroy our system of government."

Read the original article on Business Insider