Why criminal charges for top officials are looking more likely
The January 6th committee hearings are confirming what we knew: Trump and his inner circle conspired to overturn the election; a few people stopped the conspiracy from going forward; the mob storming the Capitol was predictable and key figures in the administration could have prevented it.
What’s new is the bigger picture, stitched together from top officials’ testimonies and private emails and texts. The result isn’t pretty. What we can see is an administration unconcerned about sharing the truth with the public, actively aware of the crimes they engaged in, and closer than we feared to success.
These hearings could be a catalyst for accountability. So far, the Department of Justice has arrested and charged 865 members of the mob, but top officials have avoided any legal consequences. That could change, and another drawn-out scandal might hurt Trump’s chances of winning the Republican nomination in 2024. Here are the three biggest takeaways from the hearings so far:
1. Very, Very Few People Believed Trump Won
After the election, the Trump administration was a wall of denial, united in claiming that Biden’s victory should be challenged. Now, former Trump administration officials can hardly say “Trump lost” fast enough.
Kellyanne Conway wrote in her new book that she was perhaps the first to tell Trump he lost. Bill Stepien, former Trump campaign manager, testified that he told Trump not to declare victory. Bill Barr testified that he told Trump the claims of fraud were “bullshit.” Trump’s daughter Ivanka testified that she agreed with Barr. Former Trump advisor Jason Miller recounted that the campaign’s data expert, Matt Oczkowski, “delivered to the president in pretty blunt terms that he was going to lose.” Deputy Attorney General Richard Donoghue testified that he told Trump “The major allegations are not supported by the evidence developed… Much of the info you’re getting is false.”
People like Kayleigh McEnany, who promoted election fraud lies, and Sean Hannity, who coordinated on messaging with the campaign after the election, privately acknowledged their lies had gotten out of hand. On January 7th, Hannity texted McEnany saying “No more stolen election talk… impeachment and 25th amendment are real, and many people will quit.” McEnany replied “Love that… That is the playbook.”
Even Trump tacitly acknowledged he lost the election. According to Alyssa Farah Griffin, the former White House director of strategic communications, Trump “blurted out watching Joe Biden on TV, ‘Can you believe I lost to this guy?'”
So while 67 percent of Republicans believe that the election was corrupt, close to 0 percent of Trump administration officials agree with them. The lie of election fraud is gaslighting on a national scale.
2. Everyone Knew It Was a Crime
But could the plan to have Pence declare Trump president on January 6th really be legal?
“No,” says everyone involved in the plan.
Trump’s hopes of overturning the election relied on his lawyer, John Eastman, convincing Mike Pence to disrupt the proceedings on January 6th as they’re outlined in the Electoral Count Act. No one believed Pence could do that, including the people backing the plan.
Greg Jacob, Pence’s legal counsel, testified that Eastman privately admitted that his plan would violate the Electoral Count Act. Jacob then pressed Eastman on if Democratic vice presidents would have the authority Eastman was granting to Pence, to which he responded, “Al Gore did not have a basis to do it in 2000. Kamala Harris shouldn’t be able to do it 2024—but I think you should do it today.”
Eastman wasn’t putting his faith in a misguided legal philosophy, he was encouraging people to commit acts that he acknowledged were crimes. Reminded that it could trigger violence, Eastman said that “There’s been violence in the history of our country in order to protect the democracy, or to protect the republic.”
So Eastman kept pushing the plot with Trump’s support, even though Eastman admitted in front of Trump that it was illegal.
Eric Herschmann, a White House lawyer, testified that he told Eastman, “Now I’m going to give you the best free legal advice you’re ever getting in your life: Get a great f—ing criminal defense lawyer. You’re going to need it.”
And Eastman eventually emailed Rudy Guiliani saying “I’ve decided I should be on the pardon list, if that is still in the works.”
It wasn’t just Eastman either. Marc Short, Mike Pence’s Chief of Staff, testified that Mark Meadows admitted the plan to overturn the election was illegal. As did Guiliani, according to Herschmann.
So it’s no wonder then that several Republican representatives involved in the efforts to overturn the election would seek legal protection as well. On June 9th, Liz Cheney said “Representative [Scott] Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon…. Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election.”
The most amazing part of this isn’t that the Trump campaign willingly pursued illegal acts or that they were fearful of the consequences, but that they have faced essentially no repercussions when they thought they’d be facing jail time.
3. The Plan Could Have Worked
Despite virtually no one important believing that Trump won or that the post-election schemes were legal, the testimonies presented in the January 6th hearings actually revealed one path that could have been successful in overturning the election.
According to Pence’s counsel Greg Jacob, Mike Pence may have been willing to reject a state’s lawful electors if the state legislature disputed them and put forward an alternative slate. As Jacob explained, “A reasonable argument might further be made that when resolving a dispute between competing electoral slates… the Constitution places a firm thumb on the scale on the side of the State legislature.”
In Arizona and Georgia, state election officials came under immense pressure to spin the election for Trump. Trump called Georgia Secretary of State Brad Raffensperger and infamously asked him to “find 11,780 votes… Because we won the state.” Thankfully, they managed to resist.
More bizarrely, officials conspired to present alternative slates of electors without the involvement of state’s legislatures. In Arizona, Georgia, Michigan, Pennsylvania, New Mexico, Nevada, and Wisconsin Republican electors met and declared that they were the “duly elected” electors from their states.
This alternate elector scheme appeared in the January 6th committee hearings on Tuesday, implicating Wisconsin Senator Ron Johnson. According to a text message exchange, Ron Johnson’s chief of staff tried to coordinate a handoff of fake electors for Michigan and Wisconsin from the senator to Mike Pence, only for a Pence staffer to refuse him.
Pence didn’t fall for the alternate electors, but Jacob’s testimony suggests he might have if the legislatures themselves had challenged their own state’s results. Despite all the attention on the White House, it seems that the most dangerous plots would have relied on collaboration with state houses.
The committee will meet again this afternoon at 3pm ET, then take the week off before reconvening for at least two more hearings in July. As Chairman Bennie Thompson noted on Wednesday, the committee has “taken in some additional information that’s going to require additional work.” As the scope of the investigation grows and the scale of the conspiracy comes into light, it’s becoming difficult to see how this could end without a criminal referral to the DOJ.