Criminal Intent: The Select Committee Pointed The Way For Prosecutors

Criminal Intent: The Select Committee Pointed The Way For Prosecutors

The House Select Committee on the January 6th Attack

It has been three months sincethe last House Select Committee hearing — a lifetime in the theater of politics — so it was only natural that members opted to use Day Nine to offer a refresher course on how Donald Trump tried to overturn the 2020 election and end American democracy.

In doing so, they finally absorbed a lesson that Trump himself learned years ago: Repetition, which Democratic presidents Bill Clinton and Barack Obama found boring and the press abhors, is essential for imprinting a narrative on the public’s prefrontal cortex. There was a lot of commentary this week that the hearings didn’t move the needle with Republicans. But even if around a third of Americans refuse to accept it, the true story of what happened is now set in concrete—a slab of settled history that won’t be easy to dislodge.

The Select Committee’s surprise ending — a subpoena of Trump — looks like a stunt, a way of staying relevant while members and staff prepare their final report. Trump is so guilty — and his behavior so indefensible — that even in the unhinged 14-page letter he released on Friday he doesn’t try to rebut any of the committee’s findings. The gist of his screed is that he’s upset that Congress won’t investigate the claims of vote fraud dismissed in late 2020 by 60 state and federal courts and his own Department of Justice. It’s better that he wasn’t subpoenaed a long time ago; that spared us months of pointless wrangling that would have interfered with the Select Committee’s compelling presentation of the case against him. But now’s the time for the distraction. The fake drama of whether he’ll comply with the subpoena (he won’t) will keep his name in the news and maybe help drive some Democratic turnout in the midterms.

Rep. Bennie Thompson (D-MS), the committee chair, opened Day Nine by making an important point about the genuine bipartisanship of this investigation, which goes beyond the presence of two Republicans -- Rep. Liz Cheney (R-WY) and Rep. Adam Kinzinger (R-IL) on the Select Committee:

When you look back at what has come out through this committee's work, the most striking fact is that all this evidence came almost entirely from Republicans. The evidence that has emerged did not come from Democrats or opponents of Donald Trump. Instead, look at who's written and testified and produced evidence.

As she has throughout the hearings, Cheney got to the essence of what the Select Committee wanted to convey on Thursday:

President Trump knew from unassailable sources that his election fraud claims were false. He admitted he had lost the election. He took actions consistent with that belief. Claims that President Trump actually thought the election was stolen are not supported by fact and are not a defense.
There is no defense that Donald Trump was duped or irrational. No president can defy the rule of law and act this way in a constitutional republic, period.

For those of you scoring at home, there was fresh stuff on Thursday. The most striking was the new video from inside the secure location where congressional leaders in both parties were held. Drawn from an upcoming HBO documentary shot and directed by Alexandra Pelosi, daughter of the speaker, it proves Trump was lying when he claimed Pelosi and other congressional leaders in both parties didn’t try to bring in reinforcements for Capitol Police. It also includes this soundbite for the ages:

My two big substantive takeaways: First, the Committee offered new evidence of Trump’s premeditation and criminal intent, a requirement for convicting him in any conspiracy case the Justice Department might bring. Second, it now seems likely that pro-Trump elements within law enforcement downplayed or ignored clear signs that a violent attack on the Capitol was coming. (As outside reinforcement of that impression, NBC News broke a story Thursday of an FBI whistleblower reporting that a “sizable percentage” of the Bureau was sympathetic to the insurrectionists).

The first takeaway fits into the familiar pattern of every revelation about Trump — it’s shocking but not surprising. We learned that October 31, 2020 — nine days before the election — is an important date in establishing that the coup attempt was pre-meditated. That’s when Tom Fitton, the same conservative activist who months later advised Trump that he didn’t need to return any of the purloined documents he kept at Mar-a-Lago, wrote a memo about the strategy for Election Night. Fitton counseled the president to say, “We had an election today - and I won.” He told Trump to insist that no ballots received after the polls closed (i.e. any mail-in ballots) should be counted.

Just after 5 p.m. on Election Day, Fitton spoke to Trump about the plan. (“Sending along again,” Fitton emailed Mike Pence’s staff. “Just talked to him about the draft below.”). In the wee hours, Trump went before the cameras to claim victory and declare that vote-counting should stop, just as Fitton had advised before anyone went to the polls.

Trump was executing a sinister coup plot hatched months earlier. Brad Parscale, Trump’s former 2020 campaign manager, testified that Trump planned as early as July to claim that he won even if he lost. And Steve Bannon, speaking a few days before the election in 2020 to a group of Chinese (!) visitors, said this:

LEAKED AUDIO: Trump planned to falsely claim victory, according to

Some lawyers have argued that Trump’s state of mind — his belief that he actually won the election —will be a good defense for him in the Georgia case, where he looks terrible in telling Georgia Secretary of State Brad Raffensperger to “find 11,780 votes.”

Trump Pressed Georgia Official to Find 11,000 Votes in Heated

In truth, Trump knew he had lost even if he could not ever accept it. Establishing criminal intent requires the former but not the latter. On Thursday, the Committee revisited the several occasions when Trump discussed having lost the election (“Can you believe I lost to this fucking guy?” he asked White House Former White House Director of Strategic Communications Alyssa Farah), plus Attorney General William Barr’s testimony that he repeatedly informed the president that a thorough DOJ probe had shown there was “zero basis” to the fraud claims in Georgia or any other state and that Trump was “doing a grave, grave disservice to the country” in pushing them.

The Select Committee also drove home the fresh and legally significant point that Trump had not only been told he lost but was acting on his acknowledgment of it. Rep. Adam Kinzinger, in what will likely be his farewell appearance, explained how four days after the election (on the day Joe Biden was declared the victor) Trump signed orders “which would have required the immediate withdrawal of troops from Somalia and Afghanistan, all to be complete before the Biden inauguration on January 20th.” The National Security Council and Pentagon pushed back hard at this rash and unworkable decision, which Trump made so as to get credit for the withdrawal before he left office. “These are the highly conscious actions of a president who knows his term will end,” Kinzinger explained.

Similarly, when Trump lost his final appeal to the Supreme Court on December 11, he was livid that the justices he appointed would do this to him. His “state of mind” was not that he had actually won in the high court; he simply defied the decision and thus the rule of law. Cassidy Hutchinson, the star witness of these hearings, heard Trump tell his chief of staff:

I don't want people to know we lost, Mark [Meadows]. This is embarrassing. Figure it out. We need to figure it out. I don't want people to know that we lost.

Kinzinger summed up Trump’s criminal and seditious intent:

Not only did the courts reject President Trump's fraud and other allegations, his Department of Justice appointees, including Bill Barr, Jeffrey Rosen, and Richard Donoghue did as well. President Trump knew the truth. He heard what all his experts and senior staff were telling him. He knew he had lost the election, but he made the deliberate choice to ignore the courts, to ignore the Justice Department, to ignore his campaign leadership, to ignore senior advisers, and to pursue a completely unlawful effort to overturn the election.
His intent was plain. Ignore the rule of law and stay in power.

Here’s where the plot thickens. Rep. Elaine Luria pointed to mid-December as a turning point: “Even when top law enforcement officials told the president his election fraud claims were false, he still repeated the claims in the days and weeks that followed.” Luria then proved her argument in dramatic fashion by juxtaposing testimony of Trump being told in private that fraud claims in Michigan, Pennsylvania and elsewhere were phony with Trump amplifying those lies in public the very next day.

This was an important moment in Thursday’s hearing. Afterwards, Andrew Weissmann, a former Assistant United States Attorney, explained on MSNBC that “the way you build a case is to show the gap between what he knows privately and what he says publicly. These repeated lies will be devastating if [Merrick] Garland pulls the trigger.”

As if previewing an effective summation for the jury at a criminal trial, Select Committee members reprised some highlights from earlier hearings:

  • Ivanka Trump’s friend Julie Radford in the Oval Office witnessing an irate Trump call Pence “the p-word” on the phone on the morning of January 6th when he learned Pence wouldn’t steal the election for him
  • Pence saying of that plot that “there’s no idea more un-American than the notion that any one man can determine who is president”
  • RNC Chair Ronna McDaniel testifying that Trump was on the call with her and John Eastman when they discussed the fake electors scheme (a subject of great interest to DOJ’s fraud and RICO investigations)
  • Sean Hannity, Laura Ingraham, Donald Trump Jr. and Kevin McCarthy pleading with Trump to tell his followers to leave the Capitol. When he finally did, nearly three hours after first learning about the violence, the video of rioters immediately exiting spoke volumes about his power to stop the assault much earlier had he chosen to do so.

Beyond familiar elements of the coup attempt that still have the ability to shock, my second big takeaway from Day Nine involved the response of law enforcement. Call me naive, but even knowing about the widespread support inside the FBI for Trump in 2016, I was surprised that the Bureau would fail to act on intelligence in December of 2020 about a plot to attack the Capitol. For months, FBI Director Christopher Wray and other officials insisted they had no suspicion anyone was planning anything. Now, with evidence they alerted the Secret Service of violent threats, they got some ‘splaining to do.

And so does the Secret Service. Rep. Adam Schiff said that over the summer the Select Committee had collected more than one million emails, messages and documents related to the Secret Service and possible violence in Washington but apparently none of them are from January 5th or 6th, the only two dates from which everything has been lost or erased. White House and Secret Service witnesses previously testified that they had received no intelligence about violence that could have potentially threatened any of the protectees on January 6th, including the vice president. How conveeeenient.

Schiff was scathing about what the committee had heard from the Secret Service: “Evidence strongly suggests that this testimony is not credible.”

Had they been available, the January 5th and 6th texts might have shed light on why Tony Ornato, the former Secret Service agent serving as White House deputy chief of staff, wanted Pence evacuated from the Capitol to Andrews Air Force Base, where he would have been unable to certify that Biden had been elected. That’s when Pence uttered what Rep. Jamie Raskin famously calls “the six most chilling words in U.S. history: ‘I’m not getting in that car.’”

The Select Committee familiarized the public with “The Donald,” an online message board community that got its start in 2015 as a subreddit. A few days before January 6th, Jason Miller, a longtime senior adviser to Trump, texted Mark Meadows: “I GOT THE BASE FIRED UP.” He included a link to that featured comments about the joint session of Congress on January 6th: "Gallows don't require electricity." "If the filthy commie maggots try to push their fraud through, there will be hell to pay." "Our lawmakers in Congress can leave one of two ways; one, in a body bag, two, after rightfully certifying Trump the winner.”

This smells like the president politicizing the Secret Service, turning it into a Praetorian Guard. And recent stories about Oath Keepers being in touch with a Secret Service official before January 6th raise a whole set of other questions. If either (or, miraculously, both) chambers of Congress remain in Democratic hands after the midterms, we need hearings next year devoted to the conduct of the FBI, Secret Service and Department of Homeland Security.

In the meantime, the Select Committee is helping DOJ cover the bases on criminal intent. After revisiting how Trump was told that his followers were refusing to go through metal detectors on the Ellipse, Rep. Pete Aguilar said:

Let’s pause at this point to consider President Trump's state of mind, his motivation at this moment. By that point, it was known to Secret Service that members of the crowd were armed. President Trump had been told, and there was no doubt that President Trump knew what he was going to do, sending an angry mob, a number of whom were clad in tactical gear and military garb, armed with various weapons to the Capitol. There's no scenario where that action is benign.

As in prior hearings, Raskin did a good job contextualizing events. When Trump finally told his people to go home, Raskin read his statement aloud, then unpacked it:

“These are the things and events that happen when a sacred landslide election victory is so unceremoniously, viciously, stripped away from great patriots who have been badly unfairly treated for so long.”
These are the things that happen, he said, giving the whole game away. Trump was telling us that the Vice President, the Congress, and all the injured and wounded cops, some of whom are with us today, got what was coming to us. According to Trump. January 6th should not be a day that lives in shame in infamy in our history, but rather in glory.
Remember this day forever, he wrote proudly, as if he were talking about D-Day or the Battle of Yorktown. Trump did nothing to stop the deadly violence for obvious reasons. He thought it was all justified. He incited it and he supported it.

While the Select Committee will likely reconvene when it releases it’s report, this was almost certainly the last of these terrific show-and-tell sessions that have set a new standard for high-profile congressional hearings. Even when hearings return to the squabbling and preening of the past, they will more often feature a multi-media dimension and a new concern about not boring the audience.

If nothing else, the Select Committee to Investigate the January 6th Attack on the United States Capitol has provided a vivid historical record and the building blocks of true accountability. Can those blocks be assembled into a convincing criminal case that deters future assaults on the republic? We’re about to find out.

Jonathan Alter is a bestselling author, Emmy-winning documentary filmmaker, and a contributing correspondent and political analyst for NBC News and MSNBC. His Substack newsletter is OLD GOATS: Ruminating with Friends.

Reprinted with permission from OLD GOATS


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