“Just Do It”: Democrats Continue to Struggle to Find a Crime to fit the Offense

Below is my column in The Hill on claims of Democratic members that they have established the case for a criminal conspiracy by former President Donald Trump. The search of the home of former justice official Jeffrey Clark shows a serious escalation of the investigation by the Justice Department. Probable cause of a federal crime had to be alleged as part of the Clark warrant. Yesterday’s hearing exposed Clark’s efforts to challenge the election, including a letter that was wildly inappropriate that he drafted for the top Justice officials to sign. His effort was very disturbing and was rightfully rejected by these officials. However, the claims of an established crime by Trump remain rather fluid and undefined. Making such a case is far more challenging than making the claim on national television. While castigating Trump counsel John Eastman for telling legislators to “just do it,” the same message seems to be coming from members and legal experts on some cable programs.

Here is the column:

“SECVNDINVS CACOR.” When those words were found recently on an ancient stone in Northumberland, England, there was great excitement about what might be revealed about Roman life in the 3rd Century. As it turned out, the painstakingly chiseled words (which were accompanied by the image of a giant phallus) simply said that a guy named Secundinus was … well … human fecal matter.

The stone was an impressive effort just to establish for all posterity that Secundinus was a jerk.

The House Select Committee investigating the Jan. 6 riot is an equally impressive effort to painstakingly debunk election fraud claims and to show how former President Donald Trump refused to accept his electoral defeat. If the purpose were to proclaim “TRUMPUS CACOR,” it would likely get little argument, given the testimony about elected officials and election workers hiding out in their homes after being called out by name by the then-president.

The hearings have created a lasting, damning record leading up to Jan. 6. Yet, some members of the select committee have claimed they have established clear evidence of criminal acts by Trump. It has to be more than Rep. Liz Cheney’s (R-Wyo.) insistence that the evidence would show Trump was not “an honorable man” on Jan. 6 — an assertion that even some Trump supporters might endorse.

That claim is important to avoid confirmation of what was widely reported before the hearings. According to The New York Times, the hearings were framed with the intent to use the select committee largely to “recast the midterm message” and “give [Democrats] a platform for making a broader case about why they deserve to stay in power.” In other words, chiseling out “Trumpus Cacor” before the November election.

The fact is that this evidence is important for Americans to hear and see. Yet, the claims of established crimes this week seemed to run from the visceral to the recreational.

On CNN’s “Erin Burnett OutFront,” Harvard law professor Laurence Tribe declared that Trump can now be charged with the attempted murder of former Vice President Mike Pence “without any doubt, beyond a reasonable doubt, beyond any doubt, and the crimes are obvious.” In addition to declaring that he is certain Attorney General Merrick Garland will now charge Trump, Tribe said: “There are other crimes that have been proven. Those are plenty to start with.”

Obviously, it is nonsensical to claim that Trump could be charged with attempted murder. However, the evidence presented does undermine Trump’s claim that he truly believed that the election was stolen when he pressured state and federal officials to block certification of the election.

Hearing an account of Trump lawyer John Eastman tell the Arizona House Speaker Rusty Bowers to “just do it” in scrapping the state’s slate of electors was cringeworthy. However, many seem to be making the same demand of Attorney General Garland about bringing criminal charges. As shown below, “just do it” is far better in selling running shoes than winning legal cases.

Crimes have elements, and the committee cannot seem to agree on even the crime, let alone the elemental evidence. Indeed, reports indicate that the committee is divided on even making a criminal referral to the Justice Department.

Here are the three most commonly cited crimes this week and their respective challenges for prosecutors:

Conspiracy to obstruct Congress

The committee has established that Trump was told by his attorney general, White House counsel, and a host of Justice Department and White House lawyers that there was no good-faith legal basis to challenge the election’s certification or a factual basis to support the alleged widespread electoral fraud.

However, to prove this case, the Justice Department would need to show an intent by Trump to obstruct an official proceeding of Congress. That cannot be based simply on the fact that he and his supporters in Congress planned to challenge the certification of the vote. Challenges to certification have been made by Democrats, including Select Committee Chairman Bennie Thompson (D-Miss.), who voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016.

An obstruction charge would have to show that Trump was planning for violence or actively supported the violence as it unfolded. However, it now appears that National Guard personnel were offered by the Trump Defense Department — but declined — four days before the riot. Trump’s delay in calling for supporters to go home was denounced by many that day; some of us objected to Trump’s speech as he was giving it and later criticized his recklessness. Making a case for condemnation is easier than making a case for criminalization of speech.

Conspiracy to defraud

Conspiracy to defraud the government is equally challenging. It would require the government to prove that “at least two people entered into an agreement to obstruct a lawful function of the government, by deceitful or dishonest means.” However, this ignores the fact that, as the committee has repeatedly stressed, there were two teams of Trump lawyers: the “Team Normal” and “Team Crazy.”

Trump may have been delusional or dishonest in siding with one team over the other. The committee has portrayed “Team Crazy” as a clown parade — but a clown parade does not make a criminal conspiracy. For a strong federal case, the charge would have to be based on proof that Trump believed these legal and factual claims were meritless. Not probably meritless but entirely, knowingly meritless. (A Georgia grand jury is looking into the separate possibility of state election fraud violations.)

Trump has long used litigation as a business and political cudgel, often advancing weak legal claims. He has been criticized for treating the law as endlessly malleable. The Democrats themselves have supplied Trump with this best defense. They have often portrayed him as a megalomaniac who could not accept that he lost the election. They offered pseudo-scientific accounts of the “shared psychosis” of Trump and his supporters in refusing to admit defeat. To bring a charge over such a challenge could criminalize future challenges when one party claims that the other lacked a good-faith basis.

Seditious conspiracy

After the riot, there were widespread calls for criminal charges over insurrection or incitement. Indeed, to the thrill of many in the media, District of Columbia Attorney General Karl Racine announced that he was considering arresting Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks (R-Ala.) for incitement. Then nothing happened. The reason was not any misguided affection for Trump; the problem was that Racine could not make the case.

The case has still not been made.

After promising new evidence of a criminal conspiracy with groups like the Proud Boys, the committee showed new tapes that simply amplified rather than added to what was already known. Indeed, in its opening hearing, the committee tellingly showed the same tape from a presidential debate when Trump told the Proud Boys to “stand back and stand by.” That much criticized statement does not make for a conspiracy carried out on national television. The committee has yet to show a direct link between these groups and Trump in carrying out a plan of insurrection.

The select committee may still have the smoking-gun evidence of a criminal conspiracy. However, if the committee hopes to do more than declare Trump a modern-day Secundinus, it still has to prove that he is a criminal.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.

228 thoughts on ““Just Do It”: Democrats Continue to Struggle to Find a Crime to fit the Offense”

  1. OT

    “RECONSTRUCTION OF A SOCIAL WORLD”

    The Supreme Court decided that Roe v Wade is unconstitutional.

    Now the Supreme Court must find that secession was and is fully constitutional, and that Karl Marx’s “RECONSTRUCTION Amendments” were and are unconstitutional.
    ___________________________________________________________________________________________________________________________________

    Karl Marx congratulated and commended Abraham Lincoln, as “…an earnest of the epoch to come…,” for his leadership “…through the matchless struggle…” toward “…the RECONSTRUCTION of a social world.”

    – Karl Marx, Letter to Abraham Lincoln – https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm
    _____________________________________________________________________________________________

    “These capitalists generally act harmoniously and in concert, to fleece the people.”

    – Abraham Lincoln, from his first speech as an Illinois state legislator, 1837
    __________________________________________________________

    “Everyone now is more or less a Socialist.”

    – Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848
    __________________________________________________________________________________

    “The goal of Socialism is Communism.”

    – Vladimir Ilyich Lenin
    _________________

    “The workingmen of Europe feel sure that, as the American War of Independence initiated a new era of ascendancy for the middle class, so the American Antislavery War will do for the working classes. They consider it an earnest of the epoch to come that it fell to the lot of Abraham Lincoln, the single-minded son of the working class, to lead his country through the matchless struggle for the rescue of an enchained race and the reconstruction of a social world.”

    – Karl Marx and the First International Workingmen’s Association to Lincoln, 1864

  2. Sane Americans can see through this PR stunt and will reject any claims of “conspiracy” it manufactures. This partisan committee will end after the November elections, leaving only the stain of its own deception. The Democrats are piling up quite the list of hoaxes, from Russiagate to Jan. 6th., but the polls are showing that Americans are more concerned with their gas bills than with the gaslighting coming out of DC. We will not forget.

    1. Giocon1 says:

      “gaslighting coming out of DC.”

      These are Turley’s statements disputing your gaslighting charge:

      “The fact is that this evidence is important for Americans to hear and see.”
      ….
      “However, the evidence presented does undermine Trump’s claim that he truly believed that the election was stolen when he pressured state and federal officials to block certification of the election.”
      ….
      “Hearing an account of Trump lawyer John Eastman tell the Arizona House Speaker Rusty Bowers to “just do it” in scrapping the state’s slate of electors was cringeworthy.”
      ….
      “The committee has established that Trump was told by his attorney general, White House counsel, and a host of Justice Department and White House lawyers that there was no good-faith legal basis to challenge the election’s certification or a factual basis to support the alleged widespread electoral fraud.”
      —————-

      Is Turley suffering from TDS? Would that explain his belief in the testimony of these “RINO’s”?

      1. Regardless of who said it the claim that Trump sought to get election officals to refuse to certify elections does NOT support claims he did not beleive the election was stolen.

        Arguably it supports the OPPOSITE.

        I do not care who you are quoting – bad logic is still bad logic.

        Mind reading is still mind reading.

        I would further note – that while YOU or Turley might not beleive there is enough evidence of fraud and lawlessness to doubt the election
        More than 100 million people do.

        1. “The men the American people admire most extravagantly are the most daring liars; the men they detest most violently are those who try to tell them the truth.”

          H.L. Mencken

      2. Someone else’s opinion of what is “cringeworthy” is not evidence of a crime.

        I think Raffensberger’s conduct has been “cringeworthy”.

        He presided over the destruction of his states election laws.
        He has done everything in his power to hide evidence of fraud in GA from before the election.
        And there is LOTS of evidence in GA.

        Raffensburger failed to live up to his oath of office – to enforce GA law and constitution.

      3. Wow, Trump was told something stupid.

        Lets convict him now.

        The DOJ/FBI just raided the home of a former DOJ attorney for the crime of saying the election was stolen.
        I guess that means all democrats are criminals because they refuse to investigate.

        Someone told Trump something you like – SO WHAT.
        If you want as president a pupet that regurgitates what others says – you have Biden.

          1. The post was sarcasm.

            But since you took it seriously – “seeking out” what you think is stupid is still not a crime.

            I would suggest reading “The Crucible” – it is a pretty good description of the democratic party today.

            Driven but idiot children, and using the most idiotic arguments as purported proof.

            Atleast in the Crucible there were rudiments of an adversarial system.

  3. “. . . National Guard personnel were offered by the Trump Defense Department — but declined — four days before the riot.”

    Now I understand why Pelosi refused to approve the deployment of some 20,000 NG troops.

    She knew (somehow) that those troops were Trump’s Praetorian Guard — that they would be stationed, not to protect the Capitol, but to do insurrectionist things. So really, her machinations defended democracy.

    1. Turley called it the “Trump” defense department. This is where many trump supporters claim “Trump” offered the national guard. Trump didn’t offer anything of the sort.

      It was the pentagon itself independent of Trump. That’s in line with the disingenuousness of Turley’s columns.

    1. I kinda just wish this had happened any other day. My wife is a Penn State Master Gardener. Her plan was the winning submission for a garden at the county courthouse. Today is planting day. I really don’t want to have to dodge crazies while trying to help plant. At least I’ll have a shovel the beat any nutjobs over the head if it gets too crazy.

      1. Curentitguy – Tell them she’s planting cannabis, for sure they’ll leave her be.

  4. “. . . a letter that was wildly inappropriate . . .”

    I look forward to the FBI raiding the homes of 50 intelligence “experts.”

    1. Pelosi’s hubby arrested for DUI. Nancy denied Holy Communion. Dementia Joe falls off bicycles and needs staff cliff notes to tell him simple things like “YOU sit down. YOU leave the room” J6 hearing is a bust. Roe is finally gone.

      Today is a good day.

      Now, the left’s Summer of Rage goes full throttle.

      1. “YOU enter the Roosevelt Room and say hello to participants,” “YOU take YOUR seat.” “Press enters,” “YOU give brief comments (2 minutes). Press departs (t). YOU ask Liz Shuler, President, AFL-CIO, a question. Note: Liz is joining virtually. YOU thank participants. YOU depart.”
        Are you kidding me?
        I was hoping this was the Bee. It is not! It is real!

  5. I hear Schiffty has evidence that Trump did the Lindbergh baby kidnapping. Seems that sleuth of a Congressman found a wooden ladder at Trump’s Mar-a-Lago golf course. And then he found holes in the ground surrounded by lush green where Trump attempted 18 times to bury the body but was stymied by metal cups. They’ll get him this time that Teflon Prez!

    1. mespo……LOL……..And I heard that Schiff has an old photo of Trump, who is seen hiding behind an iceberg, while holding a giant can opener, as the Titanic passed by!

  6. “Making such a case is far more challenging than making the claim on national television.”

    …And the case made on national television has a committee acting as judge, jury and prosecutor while not allowing any defense. These people must love Stalin.

    1. S. Meyer. Being a drama queen does not suit you. But your ignorance does. Stick to that instead.

      1. Are you saying what I said was wrong? Go ahead and explain yourself if you can. Jan 6 isn’t a courtroom but the components are extremely similar except for a defense attorney and an impartial jury and judge.

        I think you are the drama queen as others have mentioned.

        1. “ Jan 6 isn’t a courtroom but the components are extremely similar except for a defense attorney and an impartial jury and judge.”

          “Extremely similar”. Nope. It nowhere near that. A hearing and a trial are two different things. This is why your ignorance is a problem. You always have trouble making simple distinctions.

            1. Somehow there’s always hope Allan’s head will pop out of his butt. It’s never going to happen.

  7. If this production hasn’t opened the eyes of Americans to the deceit and corruption within DC politicians there’s no hope for the nation. We were bombarded for nearly 3 years of Russia Russia Russia, two attempts to impeach based on nothing by the same individuals who sit on this “committee”. The key characters to these attempts have slipped away unscathed. The MSM has proven to be co conspirators and unreliable at presenting news and facts.

    Meanwhile in months our economy, gas at the pump and essentials, even baby formula have been driven below the days of the Carter administration. The average Americans life has been stressed and degraded by a political organization that’s been corrupted by a Marxist influence. Let’s hope there’s still time to throw the anchor out and stop the death of this nation and recover quickly.

  8. FROM MY PERSPECTIVE, ALL POLITICIANS, BY THEIR VERY NATURE, ARE CORRUPT. IF OUR LEGISLATURES WERE GOING TO HAVE A FAIR “HEARING” THEN I THINK CROSS EXAMINATION SHOULD BE A KEY ELEMENT.

  9. “An obstruction charge would have to show that Trump was planning for violence or actively supported the violence as it unfolded.”

    Turley is raising the bar for conviction. Trump was found to likely been guilty of several counts of obstruction in the Mueller Report with no violence involved. Now “violence” is a requirement. Next if nobody was murdered it isn’t obstruction. For all you that feel Ashli Babbitt was murdered, was Trump an accomplice?

    1. The Mueller Report. Hahahahahaha.

      And yes, Ashli Babbitt WAS murdered. In cold blood.

      1. She was “murdered” during the course of committing a crime. Everyone of her coconspirators is guilty of her murder including the man who set them on their way.

          1. Ashli was murdered during the commission of a crime and leading a crowd towards a man that had a reasonable fear for his life. George Floyd was suspected of a crime and sitting in a car before he was killed. If you’re suggesting four officers on his neck and back were in fear from Floyd, you’ll have to make that case. They might have had reasonable cause to fear the crowd watching them commit murder.

            1. enigma:

              No one disputes George had just committed a crime, was a career criminal, was on drugs and presented a danger to cops and the community. Ashli was a veteran, committed trespass and obstructed Congress, was unarmed and hardly a threat to the reckless, unpunished cop who shot her dead and then played victim. Both look morally wrong to me, were opposite race (funny, no riots) but the legalities will have to be worked out. They are comparable from a moral perspective although I’d lament Ashli’s passing more than George’s.

              1. In your opinion, how many people would have followed Ashli through that window and what would they have done to that guard? The guard was there to protect the Capitol from a clear and present danger. I would have shot in that situation with no remorse.
                “funny, no riots”
                Ashli got shot during a riot, if ever there was a justifiable homicide this was it.

                1. “Ashli got shot during a riot, if ever there was a justifiable homicide this was it.”
                  **********************
                  Well that rule won’t work elsewise BLM/ANTIFA thugs would be obliterated every time they went for a “mostly peaceful” evening stroll. That said, I wouldn’t mind a trial run.

                  1. The way I see it, those riots were mostly white people, America will never permit the continued murder of white people. the Kent State shootings changed America’s mood and was part of what led to the end of the Vietnam War. The Jackson State shootings barely register in American history.

                    I tend to separate BLM from Antifa, they are linked in conversation for political reasons but have no ties. Show me a meeting of leaders like between the Proud Boys and Oath Keepers? I think as time went on, various groups including the Proud Boys, Antifa and others found an opportunity to exploit things for their own purposes.

                    https://www.yahoo.com/lifestyle/video-oath-keepers-proud-boys-142353089.html?fr=yhssrp_catchall

    2. Enigma, that seems to be Turley game. He keeps raising the bar for conviction every time more damaging evidence comes forth.

      It’s a form of denial.

        1. And only because the majority of rioters were white did the situation not degenerate into a couple hundred of similar deaths on the steps of the Capitol.

          1. “And only because the majority of rioters were white did the situation not degenerate into a couple hundred of similar deaths on the steps of the Capitol.”

            Exactly!

  10. It was an attempted coup organized by the President. They were very close to destroying this country. It takes quite a partisan Trumper to not see how serious this is.

    1. A bunch of very angry people in a riot, who smashed some stuff is not “very close” to anything. Either you are deluded, a liar, or a hyperventilating drama queen, which is it?

  11. Not all minds think alike. Just sit in a doctors office each day and see 30-40 people and it becomes quite clear. Reasoning is highly individualistic and variable depending on the specific traits, experience, genetics, education (or lack thereof) and a host of other factors that are not even apparent yet. Clearly that is true in politics. If we all thought the same then popular votes would show massive divides like 90%-10% or even greater but experience shows us the the popular vote is often within a range between 55% and 45%. A landslide is considered to be above 55% of the popular vote. The highest % total of the popular vote in American history was under 62%. The UK has not had a single party have a vote percent of greater than 50% since approximately 1960, just as a thought. I think that may be one of the reasons why we have due process, determination of the facts, juries of 12 people etc. Just a thought for all the partisans out there and why criminalization of the political process is such a chancy and dangerous idea.

  12. Is anyone actually watching the Jan6 hearings?

    “I have talked with two separate Democratic members of Congress in the last couple of weeks about January 6th…Both of them have said, offhandedly, ‘Nobody gives a bleep about January 6th,’” Politico’s Betsy Woodruff Swan said.

    1. Haven’t watched a single minute of the proceeding, haven’t read a single news account. I simply don’t care about a 3rd rate riot by people who have had rage building up for decades with a system so fundamentally corrupt and broken it deserves to be burned down.

      People keep using the words “insurrection” and “attempted coup”. Give me a break. Wake me up when they seize the TV and radio stations, cut the internet, and grab control of the airports like a real coup.

      1. CurrentSitGuy,
        Ah, someone who is either well informed, a vet or both.
        Yes, I spent a year in Afghanistan. I know what real insurgents look like.
        Jan6 was not that. More like an unruly mob, turned into a riot, with selfies.

  13. Excellent analysis of law from Professor Turley, as usual. Add to the discussion the possible events for this committee should the Republicans take control of the House in November. If they continue the committee and appoint members that are not committed to this witch hunt, it is likely that all of the info so far hidden from public scrutiny will be available, and perhaps there will be egg on the faces of the likes of Chairman Johnson and Speaker Pelosi. Clearly, there is much to be learned from the records that are being hidden and it’s likely the faux pas of Pelosi et al with respect to security and relative communications will give a more objective account of the whole thing. Maybe info about the murder of 4 protesters will be available, including Ashlee Babbit, none of which has even been mentioned because this group’s sole objective is to villify Trump, not to provide any objective facts.

    1. It is my hope that republicans do not run congressional committees in this fashion.

      It is my hope that they stick to making public what is being hidden.
      That is all most of us need.

      But it would serve democrats right for Republicans to resort to the same witch hunts and target democrats.

      And tens of millions of republican voters are demanding exactly that.

      Turn about is fair play.

  14. Can we please look at the destruction of the historic church, the president having to go the bunker, and J6 all in one fair, complete look so we can heal? Again, why no cross examination of witnesses? They’re all or mostly lawyers, you mean they don’t know what cross examination is? McCarthy-like!

  15. At this very moment JeffSilberman is writing his first of 200 comments on Trump and this column.

    Jeff, give us all a break and get a hobby. A different hobby!

    1. Sorry hullbobby, no can do. I’m staying here until I see Trump put on trial civilly of criminally in order to read your reactions when Turley does not discredit the trials. It will give me immense pleasure to observe all you Trumpists feeling betrayed by Turley.

  16. Bennie Thompson, the Chairman, and Jamie Raskin both voted and argued that certification of presidential elections. Stacey Abrams thinks she is the governor of GA and Hilary Clinton has said many times that her election was stolen. Although Trump wrongly took this to a new level this is just another example of leftist hypocrisy. I grant that having a sitting president taking these actions is problematic, but watching Thompson and Raskin pose as fighting election truthers is beyond sickening.

    Curious thing: I believe that Raskin’s very first vote in office was against certification of a presidential election. This shows that the guy is just a player hoping to make a name for himself. He is vulnerable to losing his seat this year, let’s hope it happens.

  17. The effects of the 1/6 committee inspire the efforts of our lefty bloggers.

    More and more words, increasing passion, but little evidence.

    Anonymous and Silberman are becoming increasingly wordy as they desperately try to convince thinking people that up is down.

    Have to admire the dedication of two individuals who devote their days to writing screeds that are rarely read.

    Some here may describe Anonymous and Silberman as retards, stupid, or TDS sufferers.

    I will be charitable and just say that they are “challenged”.

    1. Thanks Monument. Coming from such an ugly character as yourself, I appreciate your forbearance.

      1. Fact is, the only thing that Turley has to say in defense of Trump’s conduct is that the J6 committee has yet to prove all the elements of any number of crimes- high praise indeed!

        Turley is open to that prospect.
        Lying Trumpists are not.

        1. JS:

          “Fact is, the only thing that Turley has to say in defense of Trump’s conduct is that the J6 committee has yet to prove all the elements of any number of crimes- high praise indeed!”
          **********************************
          Indeed. Same could be said about you for the crime of espionage or buggery of child molestation. Saying something hasn’t been proven against someone tell us exactly nothing about that person or his conduct.

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