Last-Chance Hearing: Jan. 6 Committee Has Yet To Establish A Criminal Case Against Trump

C-Span Screengrad

Below is my column in the Hill on today’s final scheduled hearing of the J6 Committee. While the Committee can continue to schedule new hearings, the eighth hearing highlights the fact a compelling criminal case against President Donald Trump has still not been made. Despite the prior promises of the members, the hearings have largely amplified what was previously known rather than introduce new “smoking gun” evidence. Even in the absence of a single dissenting member, the Committee has not been able to make the long-promised criminal case.

Here is the column:

The eighth and final scheduled hearing of the House Jan. 6 select committee is scheduled for Thursday, and its members reportedly will present a time line of events on that day, particularly the 187 minutes between the end of then-President Trump’s speech on the Ellipse and his call for supporters to leave the Capitol.

It will again replay moments from the horrific to the heroic. What it has not shown thus far, however, is what was promised at the outset: a clear criminal case against Trump.

At the start of the hearings, committee members promised they had the long-sought smoking-gun evidence — new material that would close the circle on Trump. Committee member Rep. Adam Schiff (D-Calif.) indicated he thought there was now “credible evidence” to support a variety of criminal charges. His colleague, Rep. Jamie Raskin (D-Md.), said the committee would show that Trump organized a “coup” on Jan. 6, 2021.

No sooner had the hearings begun when many in the media declared that the criminal case had been conclusively proven — even though most of what was being presented was already generally known.

It often sounded more like a prayer than proof.

Former Nixon counsel John Dean said an indictment would be forthcoming because “I don’t see how the line prosecutors at the Department of Justice can’t take a lot of this evidence and use it. … Trump is in trouble. Trump is in trouble.”

Harvard law professor Laurence Tribe said the question was only what would be charged first, since Trump’s felonies were shown “without any doubt, beyond a reasonable doubt, beyond any doubt, and the crimes are obvious.” That included an allegedly clear case of attempted murder of former Vice President Pence.

Yet, on the eve of the primetime hearing this week, committee members sound strikingly less prosecutorial. Rep. Elaine Luria (D-Va.) told CNN that “I look at it as a dereliction of duty. He didn’t act. He did not take action to stop the violence.”

It is difficult to make a criminal case over what an official failed to do. Yet the last hearing seemed to focus on a number of things that did not occur, from a draft tweet that was not sent to an executive order that was never signed. There were discussions of appointing Trump attorney Sidney Powell as a special counselseizing voting machines or replacing the Justice Department’s leadership. As unnerving as these proposals were, they also were not carried out.

It is the type of evidence used to show mens rea — “guilty mind.” However, crimes generally require both guilty minds and guilty acts. Building a criminal case on the failure to act to stop the violence is a notoriously difficult case to make. It has been raised in various contexts without success even when officials had direct law enforcement duties, as in Seattle with the CHOP zone in the summer of 2020. It is even more difficult when the House committee has blocked any serious investigation into the potentially contributing failure of Congress to take better precautions before the riot, another costly act of omission.

The committee has built a powerful case that no compelling evidence of widespread voter fraud existed in the 2020 presidential election, and that Trump knew (or should have known) he was asserting baseless allegations. White House strategy sessions became increasingly heated between Trump’s two teams of lawyers, including a breathtaking Dec. 18, 2020, meeting when two lawyers seemed close to a physical altercation. Clearly, Trump only heard what he wanted to hear — but that does not prove he knew the election was valid.

The committee has portrayed Trump’s reliance on a private legal team as knowingly dishonest by calling it “Team Crazy.” However, the committee also portrayed Trump as a raving egomaniac who could not accept that he lost the election to Joe Biden.

But, again, it is a difficult criminal case to make, based on a layperson believing one set of lawyers over another. Former prosecutor and former senator Heidi Heitkamp (D-N.D.) said of the hearings that “as a former prosecutor myself, everything that I’ve heard, I think it would be a very tough indictment to get.”

It is not even clear, after seven hearings, what crime we are discussing.

The conspiracy to insurrection claim of the second Trump impeachment has turned into accusations of obstruction of Congress, seditious conspiracy and conspiracy to defraud, or the dereliction of duty suggested by committee members like Rep. Luria.

Attorney General Merrick Garland clearly is looking for evidence of criminal conduct and could seek an indictment. If based on the committee’s evidence, however, it is a criminal case that would be ripe for reversal even if a conviction could be secured from a favorable District of Columbia jury.

Looking objectively at the evidence, the committee never supplied “credible” proof of crimes. That is not to say the evidence is not shocking; indeed, it is like a series of “jump scares” involving Trump and others raising unfounded or unconstitutional courses of conduct.

However, the most damning evidence concerns what Trump failed to do in those 187 minutes.

Trump has stressed that he told his supporters to go to the Capitol “peacefully” to support Republicans challenging the election. At 1:11 p.m., Trump concluded his speech. Around 2:10 p.m., people surged up the Capitol steps. At 4:17 p.m., Trump made his statement to stop — roughly an hour and a half later.

Many have denounced that delay, and some of us were critical of Trump’s speech as he was giving it or soon after it ended. His was a failure of leadership — but that does not mean it was a violation of the criminal code.

It is the type of evidence that should have been gathered before the second impeachment, to make a case for conviction in the Senate. Instead, House Speaker Nancy Pelosi (D-Calif.) and others opted for a “snap impeachment,” holding a single hearing. Today, they seem to be building the case I recommended in 2021 — just 19 months too late.

Trump still could face charges in Georgia over efforts to force a recount there and pressuring state officials to “find” the needed votes. However, the committee spent much of its time with Georgia witnesses in showing how they were hounded by Trump supporters and publicly mistreated by Trump. That again is outrageous and reckless, but not necessarily criminal. A Georgia case could also bog down on the question of Trump’s intent and knowledge in pushing election fraud claims.

The Jan. 6 committee has made a case against Trump personally and politically. It has not done so criminally. This final scheduled hearing would be an excellent time for that promised case to be finally made.

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

321 thoughts on “Last-Chance Hearing: Jan. 6 Committee Has Yet To Establish A Criminal Case Against Trump”

  1. Alan Dershowitz said they’ll shred the Constitution just to get Trump. Either Trump 1) will get Full discover; ability to cross examine or 2) they’ll get a judge like Sullivan or 3) it’ll further destroy the country.

  2. “…The committee has built a powerful case that no compelling evidence of widespread voter fraud existed in the 2020 presidential election…” What “powerful case” is that? Consider the fact that multiple state supreme courts and other courts have ruled that several swing states Biden supposedly “won” by very narrow margins illegally and unconstitutionally changed election laws prior to the 2020 election. That means literally millions of ballots were cast illegally and never should have been counted. Those were primarily absentee and drop box ballots – all of which heavily favored Biden. In other words, if those illegal votes weren’t counted, Trump almost certainly would have won those states by large margins. Then there are the problems with no legally required chain of custody on many more ballots, people who moved voting in the wrong place, drop box stuffing, massive unconstitutional use of Zuckerbucks, etc., etc., etc., – all of those are also votes which legally can’t be counted but were.

    There is no possible way the J6 Committee could have made a “powerful case” that the 2020 election wasn’t illegitimate. What’s more, someone’s opinion that the election was on the up and up is totally moot – Trump has been proven to have been exactly correct. The election was rigged – there was even a huge article in either Time or Newsweek talking about how it was rigged by the elites to favor Biden.

    All of which makes the claim in this article that the committee made a “powerful case” that there was no election fraud downright ludicrous.

    1. Zuckerbucks. Because Rupert Murdoch spending millions of dollars on Republican interests is good. But Zuckerberg spending Millions of dollars on Democrat interests is a crime. Despite that it was Republicans that opened the door for corporations to be allowed to spend that kind of money on their political interests. Why dont you just slap a swastika armband on and be done with it. Your post already betrays your fascist mindset.

      1. If you can’t see that what Zuckerberg did is wrong, you have a problem. If you can’t see that the lack of cross-examination leads to a one-sided fantasy, you have a second problem. If you need to bring in swastikas to a reasonable response, that is three strikes and you are out.

        1. “We are enemies of today’s capitalistic economic system for the exploitation of the economically weak, with its unfair salaries, with its unseemly evaluation of a human being according to wealth and property instead of responsibility and performance, and we are determined to destroy this system under all conditions.”
          — Adolf Hitler
          Source: Hitler’s speech on May 1, 1927. Cited in: Toland, John (1992). Adolf Hitler. Anchor Books. pp. 224–225. ISBN 0385037244

          1. This must be fake – we all know that the Nazi’s were right wing conservative free marketeers.

    2. The committee has built a powerful case that no compelling evidence of widespread voter fraud existed in the 2020 presidential election…” What “powerful case” is that?
      Why none, of course, since you can’t prove a negative especially when you don’t look.

  3. Turley: The Honorable Judge David Carter from the U. S. District Court, Central District of California, said it is more likely than not that Trump committed crimies while trying to stop the certification of Joe Biden’s victory. But, you’re paid to opine otherwise by the network whose on-air hosts advise Trump and appear with him at rallies.

    1. Mueller found nothing, Schiff has found nothing, Schiff complained that Garland wasn’t doing anything to compensate for Schiff finding nothing, Garland hasn’t found anything, the NY AG gave up trying to find anything so she could run for governor but the dem leadership told her to know her place so she went back to trying to find something but still has found nothing, and the Manhattan DA gave up trying to find anything.

      But you keep that delusion alive.

  4. Yes, occasionally Trump is rude. We all are, but he gets things done. He is a positive. You are rude and a negative.

    You haven’t had the occasion of knowing him better, but he is a charming insightful individual. Don’t rile him. His policies were proven successful. Yours were proven failures. Look at what we have today, a train wreck.
    >>You are a rude person. What made you that way?

    >Trump is a rude person. What made him that way?

    1. You know, I’ve heard this sad excuse and deflection away from Trump’s lying, petty name-calling and bluster as he’s “just rude”, but down-deep, he’s really charming. No, he isn’t–it’s part of the well-burnished reputation he’s tried to create, but deep down inside he’s a proven liar with a serious narcissistic personality disorder. Things turn ugly when he doesn’t get his way. And, the fact is “his policies” were a disaster for America: the trade war he started when he couldn’t bully China has resulted in the shortages of consumer goods which is driving inflation now. His tax cuts that mostly benefitted the very wealthy drove our national debt to record levels, and interest on that debt alone helps fuel inflation. His weakness, due to his massive ego, pandering to Putin because he needed Russia to help him cheat in 2016, along with trashing the EU and insulting our NATO allies, emboldened Putin to invade Ukraine. He drew down our troop srength from 14,000 to 2,500, didn’t involve our Afghan allies in negotiations with the Taliban and he turned loose 5,000 Taliban from prison, all before everyone got out, resulted in the messy withdrawal from Afghanistan. His lying about the seriousness of the pandemic resulted in people distrusting our public health officials, and was the cause of at least 130,000 unnecessary American deaths, US schools, businesses and restaurants being closed down for almost 2 years. He took a thriving economy and turned it into the worst recession since the Great Depression. Unemployment was over 10% when Biden got handed the hot mess left by Trump. Trump CAUSED the train wreck. Biden has gotten COVID under control, schools, businesses and restaurants are open once again, unemployment is below 3.5%, and he brought about the fastest economic recovery in US history. The supply-chain problems and inflation were caused by Trump and his “policies”.

      1. What alternate upside down universe are you living in? Your comment reads like sad satire. Multiple studies have shown that Trump’s China tariffs had no effect on the availability of consumer goods to speak of. It sure as heck didn’t cause shortages – which started after Biden took office. When Biden took office, the unemployment rate was only 6.4%, not over 10% as you claimed (replace the “DOT” with a period of course, and see: multpl”DOT”com/unemployment/table/by-month ).

        Trump established an excellent economy prior to the pandemic – one of the reasons the pandemic didn’t cause an even worse decline and was able to have a massive and very rapid rebound. What’s more, the economy had already tremendously rebounded while Trump was in office, with a very sharp V shaped recovery – a massive historical rebound. By early 2021 (before Biden had any effect), thanks to Trump the economy was 98% back to pre-pandemic levels. See: realclearpolitics”DOT”com/articles/2021/05/11/98_of_the_way_there_trumps_super_v-shaped_recovery_145738.html#! .

        Once Biden was in office, however, his policies have essentially killed the recovery in less than a year, with the fourth quarter of 2021 having a negative GDP growth rate of -1.6% and the first quarter of 2022 also negative. Biden has KILLED the massive recovery we had while Trump was still in office.

        Plus, under Trump inflation was only 1.5% – now it’s sky high, over 9%, almost entirely thanks to Biden’s insane policies, massive spending, and myriad efforts to kill our fossil fuel industry, thus causing tremendously high energy prices.

        Your claim that Biden “brought about the fastest economic recovery in US history is utterly ludicrous – TRUMP did that, not Biden. Meanwhile, multiple studies and most experts show that the inflation was caused by Biden’s covid relief bill and the insane partisan spending in it. The supply chain problems are primarily on Biden also, as is the massively high gasoline, deisel, and energy costs. All of which have hugely contributed to the run away inflation courtesy of Biden and his cronies.

        Biden didn’t remotely get the pandemic under control either. In fact, there’ve been more deaths from covid during his first year than there was in the full first year of the pandemic while Trump was in office. The June unemployment rate was 3.6% – not “below 3.5%” as you claimed – and that’s a little higher than it was under Trump just before the pandemic started.

        But hey, you’ve sure got Pravda down pat – up is down, left is right, and we were always at war with Eastasia, Winston!! (h/t Orwell’s classic, “1984”). You couldn’t have been more backwards on every claim you made.

        1. Rational Db8:

          Thanks for setting the record straight.

          I would add only one thing:

          “When Biden took office, the unemployment rate was only 6.4% . . .”

          That unemployment was caused by statist politicians (not Trump) who imposed lockdowns and shutdowns. That was a suicidal policy. People were suffering from a pandemic. Those governors and mayors added to the suffering via compulsory unemployment.

          1. @Sam – yep, very true and very good point!! Thanks for the addition.

      2. Everything you think you know has been brainwashed into you.

        From 1999 to 2016 US middle household incomes rose $300 when adjusted for inflation. From 2016 to 2019 they rose $6,000. That’s what tariffs and keeping factories in the US does.

        Trump warned nato they needed to spend more for defense. Now Putin has proved Trump right.

        Trump is the first Pres this century to have no Putin invasions. Putin invaded Georgia under WBush, East Ukraine and Crimea under Obama, and Ukraine again under Biden.

        More people died of Covid under Biden in 2021 than under Trump in 2020. And 2021 had the vaccine and a milder virus so there should’ve been far fewer deaths.

        Inflation was caused by Biden’s war on petroleum. Almost everything in the modern world moves by petroleum.

        Last 13 months of Trump inflation: 2.5, 2.3, 1.5, .3, .1, .6, 1, 1.3, 1.4, 1.2, 1.2, 1.4, 1.4
        First 13 months Biden inflation: 1.7, 2.6, 4.2, 5, 5.4, 5.4, 5.3, 5.4, 6.2, 6.8, 7, 7.5, 7.9

        Biden’s debacle in Afghanistan showed the world how incompetent Biden is, and Biden’s high gas prices have almost tripled Russian oil revenues. Biden gave Putin the signal and the funding for the war in Ukraine.

  5. The New Documentary ‘The Real Story of Jan 6’ by Epoch Times presents another Factual side of the Jan 6 coin totally ignored by the J6 Hearings. This now illuminated side of the Jan 6 coin shows that the Violence shown in the smokey photos was certainly not instigated by Trump at all. period. It is clear that the J6 Hearings only want to see what they want to see, which is rebuilding the Impeachment again, ignoring the brilliant legal arguments which show that none of that will work, despite all the juicy Hearsay and back seat driving from people who hate Trump… hardly an impartial way to get to the Truth..

Comments are closed.