Don't Count on Criminal Prosecution To Hold Trump Accountable for His Egregious Post-Election Behavior

The final report from the January 6 select committee falls short of proving the elements required to convict the former president.

Senate Minority Leader Mitch McConnell (R–Ky.), who excoriated then-President Donald Trump's conduct before and during the January 6, 2021, riot at the U.S. Capitol, nevertheless voted to acquit him after he was impeached for that conduct. By that point, Trump had left office, and McConnell said he had concluded that the Senate did not have the constitutional authority to convict a former president. But he added that Trump could still be "held accountable" for his "unconscionable behavior" in criminal or civil court.

The criminal referrals from the select House committee that investigated the Capitol riot, which released its final report on Thursday, hold out the same hope. But that hope is probably vain, because the charges that the committee suggested entail knowledge and intent requirements that will be difficult to prove.

The committee, which interviewed more than 1,000 witnesses, issued more than 100 subpoenas, and reviewed more than 1 million pages of documents, did its best to gather and summarize evidence that might help the Justice Department satisfy those elements if it decides to prosecute Trump. But while the committee collected a lot of information that fleshes out the case for impeachment, that is not the same as proving any of the possible criminal charges beyond a reasonable doubt.

Broadly speaking, the question is whether Trump committed crimes by trying to prevent President Joe Biden from taking office. That effort included months of wild fraud allegations; pressure on local, state, and federal officials; the pre-riot "Save America" rally at which Trump urged his supporters to "fight like hell"; and a cockamamie "alternate electors" scheme aimed at supplying a pretext for Vice President Mike Pence to unilaterally reject electoral votes for Biden during the congressional ratification of the election results.

If we assume that Trump 1) knew he did not actually win re-election and 2) intended to cause a riot that would interrupt the electoral vote count, it is not hard to make the case that he committed several federal felonies, including conspiring to "defraud the United States," obstructing an official proceeding, and inciting an insurrection. But so far the evidence on both of those points is mixed and ambiguous.

Did Trump recognize that his self-serving fantasy of a stolen election was nothing more than that? The select committee notes that several of his advisers, including Attorney General William Barr, repeatedly told him there was no evidence of election fraud on a scale that would have changed the outcome. But at the same time, other advisers, including lawyers such as Rudy Giuliani and John Eastman, encouraged him to believe the election had been stolen and to keep pressing that claim through tactics they said were perfectly legitimate.

Given what we know about Trump, it is plausible that he preferred listening to advisers who said what he wanted to hear. Barr, who told Trump the fraud claims were "bullshit," testified that Trump never gave any "indication of interest in what the actual facts were."

The New York Times highlights an episode that it says shows Trump "did not believe or take seriously some of the outlandish claims about election fraud being promoted by him and his allies":

During a conference call two weeks after Election Day, the lawyer Sidney Powell asserted that "communist money" had flowed through countries like Venezuela, Cuba and perhaps China to interfere with the election.

According to testimony provided to the committee by Hope Hicks, a former top aide to Mr. Trump, he "muted his speakerphone and laughed at Powell, telling the others in the room, 'This does sound crazy, doesn't it?'"

Even if Trump thought some elements of Powell's wacky conspiracy theory were implausible, that does not mean he rejected its main thrust, which was that systematic fraud across the country denied him his rightful victory through phony ballots and manipulation of vote-counting machines. Even after the Trump campaign distanced itself from Powell, Giuliani and others continued telling that same basic story.

Trump did not need Powell to tell him that Biden had not really won the election. He seemed sincerely convinced of that from the moment the results started to turn against him on election night. Since it was inconceivable that voters had rejected him, he apparently thought, massive fraud was the only possible explanation. Everything he said and did after the election flowed from that conviction, and the details did not really matter.

Consider Trump's notorious January 2, 2021, telephone conversation with Georgia Secretary of State Brad Raffensperger, whom he urged to "find" the votes necessary to change the election results in that state. The select committee views that conversation as damning evidence of criminal intent, which would be true if it were clear that Trump wanted Raffensperger to "find" those votes by any means necessary. But Trump ostensibly was asking Raffensperger to investigate fraud rather than commit it. Trump seemed desperate to believe any allegation, no matter how dubious, as long as it supported his conviction that he had beaten Biden.

One of those allegations was that "dead people voted" in Georgia. "I think the number is close to 5,000 people," Trump said. That estimate was less than half as big as the number cited in his own lawsuit challenging the Georgia election results, which gives you a sense of how little attention he paid to such details. "The actual number [was] two," Raffensperger said. "So that's wrong."

Trump refused to believe it. "In one state [Michigan, supposedly], we have a tremendous amount of dead people [voting]," he said. "So I don't know—I'm sure we do in Georgia, too. I'm sure we do in Georgia, too."

Trump was sure the election had been stolen, even though he was hazy on exactly how. If that article of faith was impervious to Raffensperger's patient refutations, it is not hard to believe that it survived the skepticism expressed by some of Trump's advisers.

I don't know whether this interpretation of Trump's conduct is true, but it is plausible in light of his boundless self-regard and imperviousness to inconvenient truths. As a juror presented with the currently available evidence, I would see plenty of reasonable doubt as to whether Trump recognized that his election claims were false, an essential element in proving that he conspired to defraud the United States.

Maybe the Justice Department will uncover more evidence on that score. The select committee notes that many witnesses either refused to be interviewed or responded to questions by invoking the Fifth Amendment's protection against self-incrimination. With the power to offer immunity from prosecution, the Justice Department might find a smoking gun. Perhaps people close to Trump will testify that he privately conceded Biden had won while publicly insisting otherwise.

There are some hints of that. Cassidy Hutchinson, an aide to White House Chief of Staff Mark Meadows, told the select committee that her boss recounted post-election conversations in which Trump "pretty much acknowledged" that he had lost. "A lot of times he'll tell me that he lost, but he wants to keep fighting it, and he thinks that there might be enough to overturn the election," Meadows said on November 18, 2020, according to Hutchinson.

Meadows refused to be interviewed by the committee. If he talks to the Justice Department and confirms those alleged conversations, that would undermine the theory that Trump drank his own Kool-Aid. But "pretty much" admitting that Biden won two weeks after the election does not preclude the possibility that Trump ultimately came to believe the nonsense that Giuliani et al. were peddling. Again, that would be perfectly in character for Trump, who by the time of his conversation with Raffensperger seemed convinced that Biden had stolen the election somehow, as Trump still insists to this day.

What about the claim that Trump deliberately caused the Capitol riot by summoning his supporters to the January 6 rally, riling them up with a fiery speech, and pointing them toward the Capitol? McConnell, who implied that he might have voted to convict Trump if he had still been in office at the time of his Senate trial, noted that a conviction did not require evidence of criminal conduct. "By the strict criminal standard, the president's speech probably was not incitement," he said. "However, in the context of impeachment, the Senate might have decided this was acceptable shorthand for the reckless actions that preceded the riot."

Once we are talking about a potential criminal prosecution, that distinction swings the other way. The Supreme Court has held that speech is constitutionally protected even when it advocates criminal conduct (which Trump did not do) unless it is not only "likely" to incite "imminent lawless action" but also "directed" at that outcome. That means Trump cannot be held criminally liable for what he said at the rally unless he intended to cause a riot.

Trump, who urged his supporters to "peacefully and patriotically make your voices heard today" by "marching over to the Capitol building," insists that he did not anticipate violence, let alone aim to incite it. And while his "fight like hell" rhetoric in that context was undeniably reckless, it is plausible that he was so narrowly focused on promoting his own cause that he did not consider the likely impact of his words.

The committee's report includes evidence supporting that hypothesis:

The President did not, by any account, express grief or regret for what happened at the Capitol. Neither did he appear to grasp the gravity of what he had set in motion.

In his last phone call of the night, the President spoke with Johnny McEntee, his Director of Personnel.

"[T]his is a crazy day," the President told him. McEntee said his tone was one of "like, wow, can you believe this shit…?"

Did he express sadness over the violence visited upon the Capitol?

"No," McEntee said. "I mean, I think he was shocked by, you know, it getting a little out of control, but I don't remember sadness, specifically."

That account, including the implied minimization of the violence as well as Trump's emotional state, obviously does not reflect well on him. But if Trump was indeed "shocked" by the riot, as McEntee reported, that would be inconsistent with the claim that his speech was "directed" at causing it. And without that specific intent, he could not be convicted of incitement or of obstructing an official proceeding.

Given these challenges, nobody should count on a criminal prosecution to hold Trump accountable for his egregious post-election behavior. The best chance to do that came and went with his Senate trial.