Donald Trump. (photo: Erin Schaff/NYT/Redux)
18 July 22
In the wake of Cassidy Hutchinson’s extraordinary testimony before the House Jan. 6 select committee, a number of commentators have been considering
how her account will and should affect judgments about the merits of
any potential criminal prosecution of the former president. A
preliminary question for prosecutors concerns the strength of the
evidence of the president’s criminal intent as it affects the
application of the relevant statutes, such as obstruction of a
congressional proceeding or seditious conspiracy. Hutchinson’s testimony
in a number of respects bears on this issue of mens rea.
But Hutchinson’s testimony carries other importance as well, both for
prosecutors and institutionally for Congress—particularly for the
Senate. Specifically, the light that the Jan. 6 hearings, and
Hutchinson’s testimony in particular, have shed on Donald Trump’s
response to the 2021 impeachment process warrants attention.
These hearings show that Trump, through his lawyers, lied to Congress
about the events of Jan. 6 in his second impeachment trial in denying
that the then-president had meant to spark violence. In so doing, he
undermined the constitutional process of impeachment—as well as the
peaceful transition of power.
In determining whether to bring charges, prosecutors have to assess
not merely the quality of the evidence against Trump but also the
national interest in a prosecution of the former president. Trump’s lies
in the impeachment process should properly figure into prosecutors’
deliberations on this point. After all, this was the constitutional
proceeding by which he was supposed to be held accountable, and a
conviction would have included a Senate judgment of his ineligibility to
ever again seek office. Corrupting the trial compounded the underlying
conduct that prompted the impeachment by helping to sap the
adjudication of its value—thus making prosecution arguably a more
important mechanism for holding the president accountable.
What’s more, the hearings should prompt long overdue consideration of
the processes by which Congress exercises its power to impeach and try
presidents. Since 1974, it has been reluctant to conduct independent
fact-finding. In the process affecting Bill Clinton, the House conducted
virtually no independent factual inquiry, relying fatally on the
independent counsel record compiled by Kenneth Starr. The Senate then
did the minimum in the trial, conducting only three depositions. While
the House conducted a substantial investigation in the first Trump
impeachment trial, the Senate relied solely on House evidence and,
though significant questions remained unanswered, passed on conducting
any factual inquiry of its own.
In the second impeachment, concerning the events of Jan. 6, neither
house did much investigation. The House faced time pressures in acting
on a schedule that would allow for the Senate to vote on removal from
office, but once Trump’s tenure ended on the constitutionally prescribed
day and time, the Senate had more time in which to call witnesses. Yet
it nonetheless declined to do so.
In this last case, the result was that people like Hutchinson were
never called to testify, putting an enormous amount of weight on the
select committee’s investigation more than a year later. A significant
percentage of the revelations that have emerged through the committee’s
investigation would have surfaced in a reasonable trial. In other words,
that Trump’s lies to the Senate were not exposed in real time is
largely a function of the Senate having chosen not to develop any
independent factual record.
Trump’s defense in the second impeachment trial was not purely legal.
Yes, a number of senators opposed to his conviction gave as their
reason that this constitutional remedy is not available against a
private citizen: the former president who has left office. They also
expressed unease that the process would only serve as the vehicle for
barring Trump, upon impeachment, from running for the presidency in the
future. At least from the perspective of the president’s supporters,
Congress would then be involved in a political power play without
precedent in constitutional history. They also contended that Trump’s
Jan. 6 rally speech did not constitute incitement as a matter of law.
But the president’s lawyers did not defend Trump only on these
constitutional grounds. They argued his innocence in more sweeping,
factual terms, and this choice requires some examination of these claims
in retrospect.
Trump’s lawyers asserted, for example, that the former president had
no intention of inciting a riot or unleashing an angry mob on the
Capitol to intimidate in its conduct of these duties.
Consider the closing argument delivered by his counsel, Michael van der Veen:
- “[Trump’s] entire premise was that the proceedings of the Congress should continue.”
- “Mr.
Trump did not spend the weeks prior to January 6 inciting violence, he
spent those weeks pursuing his election challenge to the court system
and other legal proceedings exactly as the Constitution and the Congress prescribe” (emphasis added).
- “[T]he gathering of January 6 was supposed to be an entirely peaceful event.”
- “All
of us, starting with my client, are deeply disturbed by the graphic
videos of the Capitol attack that have been shown in recent days. The
entire team condemned and have repeatedly condemned the violence and law
breaking that occurred on January 6 in the strongest possible terms. We
have advocated that everybody be found and punished to the maximum
extent of the law.”
At one point, on Feb. 12, van der Veen was asked
by Sens. Susan Collins and Mitt Romney: “When Trump sent the
disparaging tweet at 2:24 p.m. regarding Pence, was he aware that the
Secret Service had removed Pence from the Senate chamber for his
safety?” He responded: “The answer is no. At no point was the president
informed the vice president was in any danger.”
He later stated, “Mr. Trump and Mr. Pence have had a very good
relationship for a long time, and I am sure Mr. Trump very much is
concerned and was concerned for the safety and well-being of Mr. Pence
and everybody else who was over here.”
Another one of Trump’s attorneys, Bruce Castor, declared, “The
president did not cause the riots. He neither explicitly or implicitly
encouraged the use of violence or lawless action[.]”
All this was false. And it was not, importantly, falsity of the kind
often tolerated in lawyers who “spin” the facts well or crudely but
within the conventions of the craft. It was flat-out false. The
president’s entire premise was emphatically not that the proceedings of
Congress should continue. He tried in innumerable ways to stop those
proceedings, according to testimony from aides to Vice President Mike
Pence, former senior Justice Department officials, and White House aides
like Hutchinson.
Indeed, the testimony before the Jan. 6 committee reflects the
president’s active encouragement of the attack on the Capitol, including
waiving any requirement
that his supporters be screened for weapons at the rally site and
before they headed to the Capitol. According to the Hutchinson
testimony, Trump’s chief of staff expected that things would “get real,
real bad,” and the president’s refusal to intervene and call off the mob
when apprised of the threats against the vice president in particular,
and more generally, the spreading violence, are all of a piece.
The event was not “supposed to be entirely peaceful,” and it is not
true that Trump “[spent the] weeks [prior to January 6] pursuing his
election challenge to the court system and the other legal proceedings
exactly as the Constitution and the Congress prescribe.” He spent those
weeks leaning on state legislators to overturn their own results and
state officials to lie about the vote counts in their states. It is also
not true that he was concerned for Pence’s well-being or that he was
disturbed by the attacks, according to Hutchinson.
A skeptic might argue Trump had no obligation to refrain from
falsehoods in his impeachment defense. And Congress, such a skeptic
might suggest, took the willing risk of getting lied to when it
initiated an impeachment process without taking the time to develop a
factual record. It was, then, on Congress to make its case and to catch
the president at his lies.
There is an important element of truth to this claim—one we shall
address momentarily. That said, the public is entitled to expect that in
mounting a defense in the constitutional process of impeachment,
presidents—even former presidents—have a higher obligation than assumed
by other types of “defendants.” The president swore an oath faithfully
to execute the office and to preserve and protect the Constitution,
including the constitutional process of impeachment. To the extent Trump
wants to contend that he had no obligation to honor this oath, because
he was no longer in office or because #lolnothingmatters, surely that is
a legitimate prudential factor for criminal prosecutors to take into
account when they consider prosecution for the crimes the impeachment
was intended to adjudicate.
It is also a reasonable ground on which prosecutors might reject any
defense that the criminal process is somehow inappropriate because Trump
was already “tried” for Jan. 6-related charges in the impeachment
process and acquitted. It cannot be the case that a president can induce
an acquittal (or improve its likelihood) through systematic
misrepresentations to the Senate and then rest a process-based defense
against criminal prosecution on this ill-gotten outcome.
To be sure, the president did not, of course, directly lie to
Congress; he did not appear before the Congress. And these are not the
kind of lies in any event that prosecutors would charge. Rather, he
authorized or led his lawyers to lie, which they then did, either
wittingly or unwittingly on his behalf.
But there can be no question that Trump undermined this congressional
proceeding, just as he sought to disrupt the Jan. 6 final vote count
for the presidency. He could have rested his defense on constitutional
grounds alone; he might have stood his ground on a purely legal defense
against incitement involved in the Jan. 6 rally speech. Nothing required
him to falsely proclaim his innocence of any attempt to use violent or
other means to disrupt the congressional proceedings.
Our hypothetical skeptic would be correct on one key point: Congress
did make the choice not to use the impeachment as a venue to conduct a
wider-ranging probe of Trump’s conduct during the postelection period
and it is accountable for that decision. The House’s decision to pass an
article of impeachment without investigating first may have been
defensible on grounds that the record, though incomplete, was perfectly
adequate to issue charges. The Senate, however, elected not to examine
the evidence behind the charge the House sent its way.
The Constitution requires that when sitting as a court of impeachment, senators “shall be on Oath or Affirmation.” The text of that specialized oath, spelled out in the Senate’s impeachment rules,
required that each senator affirm the following: “I solemnly swear ...
that in all things appertaining to the trial of the impeachment of
Donald John Trump, now pending, I will do impartial justice according to
the Constitution and laws: so help me God.”
Having thus sworn, the members of the Senate could reasonably be
understood to have had some obligation to look into the kind of facts
that the Jan. 6 committee has since unearthed. Even if we assume that
House impeachment managers wouldn’t have known to call Hutchinson, who
wasn’t on anyone’s radar screen at the time, the story of the attempted
palace coup at the Justice Department had already broken. So had the story of Trump’s call to Georgia Secretary of State Brad Raffensperger and the harassment of state legislators.
It is true that at the time, public attention was focused on the Jan.
6 rally speech and whether the words Trump spoke then constituted
incitement. But the article of impeachment the Senate considered read
more broadly. It referred to conduct other than the speech on Jan.
6—both the lies about the stolen election and specific steps taken to
reverse results, as in Georgia where Trump sought to pressure the
secretary of state in a famously taped conversation into finding the
11,000 votes that he needed. While the speech on Jan. 6 was the
centerpiece of the article, the impeachable offense was the attack on
the electoral process, culminating in the events of Jan. 6—which also
explains why Trump’s counsel went to some length not only to dissect the
words of Trump’s rally speech but also to disclaim any intention to
upend the process beyond “what the Constitution and the Congress
prescribe.” This was more than sufficient to justify Senate inquiry into
other events of which the Jan. 6 speech was a part, not the whole.
A final question to be addressed about the Senate’s choice is the
inevitably political judgment it faced: how long to expend on
proceedings on Trump’s misconduct as a new administration took control
and began to grapple with the major issues on its agenda, including the
ongoing public health issues facing the country. This no doubt weighed
heavily in how Democrats viewed the trade-offs, and Republicans would
have additional reasons for moving the national conversation away from
Trump’s presidency. A more full-blown factual inquiry might have tried
public patience and impeded the achievement of other legitimate policy
goals.
There was, however, a middle ground on the extent of fact-finding,
something between “none” and “all possible.” We now know that there were
former Trump administration officials open to offering valuable
information about the events leading up to Jan. 6. At least a few of
the known key witnesses, such as senior staff to the vice president,
could have been deposed, and their testimony would have helped identify
others. The Justice Department officials were also all available. It may
have been politically unwise and institutionally difficult for the
Senate to launch a trial on the order of the Watergate investigation.
Some testimony now known to have been available, however, would have
been accessible and could not have failed to have a major impact, even
if it might not have changed the outcome.
In judging what the national interest demands, prosecutors will
consider a wide range of factors. One is certainly the larger
constitutional question of presidential accountability. Presidents enjoy
legal immunity while in office, and then after they leave, many
commentators express prudential reservations about the risks of one
president’s administration proceeding criminally against its
predecessor. It’s a kind of constitutional Catch-22. In office, the
president is protected by the law; out of office, the president gets at
least the benefit of the doubt, by the operation of what might be deemed
a “norm” protecting the nation from rounds of politically inspired
legal retribution.
Whatever one thinks of the norm in general terms, in this case, we
should evaluate its power with all circumstances taken into account. In
particular, the conduct reflected in the Jan. 6 testimony is egregious,
far worse than most people supposed and very different from what
supporters have offered in Trump’s defense. The evidence for what
happened on Jan. 6 surfaced only gradually in part because Trump misled
Congress and in part because it chose not to look beyond the Jan. 6
rally during the impeachment process.
Trump further compounded the problem of the constitutional Catch-22
involved in a president’s legal immunity while in office and the appeal
to “norms” against prosecution when their term ends. In the 2021
impeachment, as in the first one, Trump argued that impeachment was
improper in the absence of evidence that he violated the law. But he
then lied to Congress about these Jan. 6-related actions and corrupted a
trial record that was left without the evidence of potentially illegal
conduct.
Whether the availability of this evidence in a Senate trial would
have changed votes is unknowable. What we do know is that on this
occasion, as in the planning for Jan. 6 itself, the president exhibited a
contempt for Congress and its constitutional role that ought to inflect
prosecutorial thinking about the prudential aspects of the decision
before them. By lying to Congress, he undermined the ability of the
tribunal to proceed on the basis of the truth. In weighing the national
interest factors at issue in this complex prosecutorial decision,
prosecutors cannot fail to take this conduct into account and certainly
disregard any attempt to offer the defense of a prior “acquittal.”
