Last-chance hearing: Jan. 6 committee has yet to establish a criminal case against Trump

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 counsel, seizing 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.