Explosive testimony piles pressure on Trump – how likely are criminal charges?

·7 min read
<span>Photograph: Karen Pulfer Focht/Reuters</span>
Photograph: Karen Pulfer Focht/Reuters

In six televised hearings, the House January 6 committee has presented extraordinary testimony about Donald Trump’s attempt to overturn the 2020 election and its culmination, the deadly attack on the US Capitol by a far-right mob.

Related: Angry, violent, reckless: testimony paints shocking portrait of Trump

The committee is made up of seven Democrats and two rebel Republicans, Adam Kinzinger and Liz Cheney, who refused to follow their party in bending the knee to Trump.

Set free of bipartisan considerations when the House Republican leader, Kevin McCarthy, withdrew cooperation, the panel has been able to act in a purely prosecutorial manner. It has also worked on how to present its findings, using TV industry expertise to present hearings honed, contained and aimed at convincing the American people Trump should never be president again.

The committee cannot charge Trump with a crime. But the US Department of Justice can, a possibility that has stoked intense speculation in Washington and the world.

Here are the key legal issues at stake:

Can the committee make criminal referrals?

Yes. It has done so in the cases of Steve Bannon, Peter Navarro, Mark Meadows and Dan Scavino, Trump aides who refused to cooperate. Pleading not guilty to criminal contempt of Congress, Bannon and Navarro face time in prison. The DoJ declined to charge Scavino and Meadows.

Will the committee refer Trump?

The chair, Bennie Thompson of Mississippi, has said he does not expect to do so. However, that statement prompted reports of disagreement on the panel and also came before Cheney, the vice-chair, revealed possible attempts to intimidate witnesses.

On Wednesday, CNN asked a committee member, Pete Aguilar of California, if he believed witness tampering had occurred.

“Yes, I do,” he said. “I think that that’s something that should be looked at by our committee and potentially by the Department of Justice.”

Asked if a referral had been made, Aguilar said: “I’m not going to talk about the investigative steps we have taken. But what I will say is I think that those statements speak for themselves [as evidence of] … dangerous behavior.”

One of the witness statements which Cheney read on Tuesday was reportedly made by Cassidy Hutchinson, a former close aide to Trump and Meadows who testified for two dramatic hours.

Could the DoJ charge Trump?

The committee has turned up extensive evidence that suggests a case could be made.

Hutchinson appeared to draw Trump closer to strong links with extremist groups which attacked the Capitol, saying she recalled “hearing the word ‘Oath Keeper’ and hearing the word ‘Proud Boys’ closer to the planning of the January 6 rally, when Mr Giuliani would be around” the White House.

Rudy Giuliani was Trump’s personal attorney. Among more than 870 people charged over the Capitol attack, members of the Oath Keepers and Proud Boys have been charged with seditious conspiracy.

But to many, one passage in Hutchinson’s testimony seemed to draw Trump the closest yet to demonstrable criminal conduct.

Hutchinson said Trump knew the crowd for his speech near the White House on 6 January 2021 contained armed individuals, some with AR-15 rifles and handguns, but still told his audience to march on the Capitol and “fight like hell” to stop certification of election results. Trump told the crowd he would march with them and, according to Secret Service witnesses, was furious to be denied.

David French, senior editor at the Dispatch and the author of Divided We Fall: America’s Secession Threat and How to Restore Our Nation, wrote: “Hutchinson’s sworn testimony closes a gap in the criminal case against Trump, and Trump is closer to a credible prosecution than ever before.”

Why?

As French described, Trump’s actions on and around January 6 appear to meet standards for prosecution set in a 1969 supreme court case, Brandenburg v Ohio, which involved a leader of the Ku Klux Klan.

Then, the court “overturned Brandenburg’s conviction, holding that even speech that threatened violence or disorder was protected by the first amendment unless ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’”.

French wrote: “Note the elements of intentionality, likelihood and imminence. The imminence element is easiest to satisfy. The mob was right there. It marched to the Capitol right away, even as Trump was speaking. But what about intentionality and likelihood?”

In French’s view, Trump demonstrably summoned the mob, knew it was armed and dangerous, told it to “fight like hell” and tried to march with it. He then inflamed it further with a tweet in which he derided Mike Pence, his vice-president, for not supporting his scheme.

Is the DoJ investigating Trump?

Yes. This week, the New York Times profiled Thomas Windom, “an aggressive if little-known federal prosecutor” who is “pulling together [the] disparate strands” of DoJ Trump investigations.

According to the Times, Windom, 44, is “working under the close supervision of Attorney General Merrick B Garland’s top aides [and] executing the department’s time-tested, if slow-moving, strategy of working from the periphery of the events inward”.

As examples of such work, the paper mentioned a raid on a former DoJ employee’s house and the seizure of a phone belonging to John Eastman, the law professor who cooked up Trump’s scheme to reject electoral college results.

Hutchinson’s testimony also increased the heat on Trump’s closest aides. Punchbowl News noted that though the DoJ declined to charge Meadows for defying the January 6 committee, “following more damning testimony on Meadows’ role in everything leading to the insurrection”, the DoJ could rethink that position.

The DoJ does appear to be closing the net on Trump. Whether it chooses to haul in such a big fish is a very big question indeed.

So will Trump be indicted?

As French wrote, “Criminal charges require both evidence and political will.

“The evidence against Trump continues to mount, both in Washington DC and in Georgia, where there is substantial evidence supporting both federal and state charges for his effort to threaten and intimidate Georgia secretary of state Brad Raffensperger to ‘find 12,000 votes’.”

Raffensperger has appeared with other Republican state officials before the January 6 committee, providing damning testimony of his own.

Most observers agree that for the DoJ to indict a former president, and at that a potential presidential candidate in 2024, would set a dangerous precedent, particularly given Trump’s strong and demonstrably violent following on the far right.

Related: Liz Cheney calls Trump ‘a domestic threat we have never faced before’

But, French wrote, “there is another precedent that is perhaps more grave and more dangerous – deciding that presidents are held to lower standards of criminal behavior than virtually any other American citizen.”

What does Liz Cheney think the DoJ should do?

The Wyoming Republican’s anti-Trump stance seems set to cost her a seat in Congress. Regardless, on Wednesday she tweeted French’s words to the world.

The same day, Cheney went to the Republican holy of holies: the Ronald Reagan Presidential Library in Simi Valley, California.

Describing “a domestic threat that we have never faced before”, the daughter of Dick Cheney, George W Bush’s vice-president, told her party: “To argue that the threat posed by Trump can be ignored is to cast aside the responsibility that every citizen – every one of us – bears to perpetuate the republic.

“We must not do that, and we cannot do that.”