Could Trump Really Be Prosecuted for Jan. 6? Part 1.

That Donald Trump and the circle around him plotted to abort the constitutional transfer of power to steal the election from Joe Biden and give Trump another term as president is indisputable. Less certain is to what extent indictments
will be brought against the many involved in the conspiracy — a larger contingent than previously realized ranging from Trump's inner circle and hangers-on to members of Congress — or whether against Trump himself. The congressional select committee investigating the January 6, 2021, riots and Capitol break-in and attempted overthrow of government has interviewed over 800 witnesses to bring to light the full story of that day and the months preceding, and it has concluded that there is enough evidence to bring criminal charges against the former president.

Two streams of activity converged on January 6 and the congressional committee has explored Trump's culpability in both.

One traces what Trump's followers did in reaction to the election. When the results showed Biden as the winner, Trump's people, primed to believe the election was rigged, made "Stop the Steal" their mantra and have persisted in that theme ever since. Vote recounts ensued in battleground states — multiple recounts in some states — none of which changed the outcome, but organizers made up for that by listing the many sorts of fraudulent ballots they had supposedly encountered. Proof was never forthcoming. Trump had more than once made statements such as, "This election is about great voter fraud, fraud that has never been seen like this before.” Asked for evidence, he would say "soon" but soon never came.

Trump's own Justice Department confirmed that the 2020 election, more closely safeguarded than any before it owing to Trump-stirred controversy, was free and secure. But Trump voters were not interested in evidence. In Trump's thrall, they accepted his claim that the election had been stolen. That was what they wanted to hear. They turned a deaf ear to all counterclaims, a mass psychosis
that had them believing they were saving the country. So they went to Washington, militia groups such as the Proud Boys and Oath Keepers among them, to storm the Capitol.

Nothing has changed the minds of Trump followers. A University of Massachusetts Amherst poll as late as this past December still had 71% of Republicans saying that the 2020 election was illegitimate. Even now, a year and a half after the election, Trump allies in statehouses around the country are pressing their legislatures to pass resolutions to decertify the Electoral College votes submitted to Congress that day in January in the belief that Trump can be reinstated as president.

In parallel is the second cohort: the conspiratorial group that began even before the final vote tally was in to explore how to overturn the loss to Biden.

Just two days after the election, Donald Trump Jr. texted Chief of Staff Mark Meadows that, with Republican majorities in the Senate and legislatures of key states, “It’s very simple, We have multiple paths We control them all.”

This would culminate two months later with the pressure campaign to make Vice President Pence refuse to accept the Electoral College submissions from the battleground states when he presided in Congress to count the votes. Several overheard Trump's final call to Pence. They could not hear what Pence was saying but Trump's saying "You’re not tough enough to make the call”, as recalled by persons in the room, made clear that Pence had refused. Even Trump's daughter saw the wrong. Ivanka said to an aide next to her, “Mike Pence is a good man.”

The committee will likely refer several of the conspirators to the Justice Department for prosecution. But will the Justice Department, either on its own or in response, follow through with indictments? The DOJ has concentrated on identifying and indicting members of the mob that attacked the Capitol and caused the deaths of Capitol police but not, or so the silence suggests, the planners of the insurrection. Inaction has earned for Attorney General Merrick Garland increasing public anger that Justice may be letting the bad guys off the hook. Is Garland wary of his department seeming too political, all targets being Republicans? What would be more political, though, than not pursuing criminal conduct in deference to politics? And yet we have seen months go by with no response after the select committee referred criminal contempt charges to the DOJ for prosecution of those who ignored subpoenas to testify.

Garland just tapped a high-profile career prosecutor to run the probe of the plot's leaders, but it is well over a year after the events of January 6 and the new hire as yet has no apparent team.

So if there is to be any justice of perpetrators brought to account, will we stop pretending that no one is above the law by showing that to be true? And most particularly, will charges be brought against the one man who instigated the entirety of the attempt to overthrow the government?

However obvious to the lay person is Trump's participation and guilt in the insurrection, the legal challenge is to tie together the loose threads to make him the direct cause. There are two avenues being explored to explicitly link Trump to the crimes:

One can readily see the direct path between the stolen election myth Donald Trump created to the assault on the Capitol. In the summer of 2020 and into the fall, he began laying the groundwork of disbelief in the election should he lose, saying it would be rigged, that only by cheating could the Democrats win, that mail-in ballots would be rife with fraud, that "millions of mail-in ballots will be printed by foreign countries". It was a deliberate ruse, an imaginary conspiracy conjured to convince his flock that the election was fraudulent. The lack of evidence, the over 60 cases that failed in the courts, the illogic that thousands of fake ballots would somehow be accepted at polling places, nothing would offset the power of his constantly repeated Big Lie.

Among the faithful were the rightwing militants. Asked in the first debate in October with Biden to condemn “white supremacists and militia groups”, Trump had been evasive, but he signaled “Proud Boys, stand back and stand by.” On December 12, thousands had gone to Washington to protest the election for the second time in two months bringing together the Proud Boys, the Oath Keepers, and the 1st Amendment Praetorians. Their president flew over the crowd in Marine One. All three groups would be on hand on January 6.

Three days later, Oath Keeper founder and leader, Stewart Rhodes, posted an open letter to Mr. Trump urging him to invoke the Insurrection Act. The day following, the Three Percenters issued a statement saying their members were “standing by to answer the call from our president.”

Duly primed, they were ready when the call came in the early hours of December 19 when Trump tweeted, “Big protest in D.C. on January 6th … Be there, will be wild!”.

The messaging between militant group members that immediately ensued in response to that tweet, discovered when Justice Department prosecutors began developing cases against militants, has led them and the congressional select committee to the belief that the tweet was the seminal incitement for the riots. What Trump meant was clearly understood by one militant who posted that Trump…

"can’t exactly openly tell you to revolt. This is the closest he’ll ever get."

The first to be convicted at trial, a Texas oil field worker, had within a day posted to a group chat with members of the Texas Three Percenters:

"Our President will need us. ALL OF US…!!! On January 6th, We the People owe him that debt. He Sacrificed for us and we must pay that debt.”

Flying to Washington was out because of the "battle rattle" of armament he planned to bring, so he said he would drive.

Three days after Trump's tweet, a gleeful Kelly Meggs, a leader of the Florida Oath Keepers, wrote at Facebook…

“Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!!, He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!! Gentlemen we are heading to DC.”

The Oath Keepers weren't keeping it a secret what they planned to do that day:

"Trump has given us marching orders, and, basically if you're east of the Mississippi you can and should be there...Keep your guns hidden...walk into DC...bring your plate carrier, your flag, radio and charging kits...your trauma kits...If/when it's time to arm up...180 rounds minimum for main rifle, another 50 for sidearm, per person."

In a letter, Rhodes wrote that many of the “tens of thousands of patriot Americans” who would head for Washington would stow their "mission-critical gear" outside the city. Filings in court cases say the Oath Keepers had reserved hotel rooms in Arlington, Va. Based there would be three teams of armed militiamen as a "quick reaction force" to rush into D.C. if needed.

An Arizona team member told Rhodes that “Everyone coming has their own technical equipment and knows how to use it.” Chat boards had been abuzz with assault tactics and what gear would be needed. The Proud Boys set up crowd-funding campaigns for travel expenses, “protective gear and communications".

Rhodes in an interview declared that there would be “a massively bloody revolution” if Biden took office. A Three Percenter member wrote that what would be needed was for "the crowd to drag the traitors out.” A Proud Boys member posted a message that said, “Time to stack those bodies in front of Capitol Hill.” Much of the discussion of potential violence occurred at TheDonald.win, a pro-Trump chat board, such as threats to trap lawmakers in the tunnels of the Capitol. The advice was to “Bring guns. It’s now or never.”

On January 6, Donald Trump looked out over the "hundreds of thousands", or so he imagined, at the Ellipse that his single tweet had brought to Washington. They were there to make it "wild", to disrupt the process of certifying the election. He at one point said, "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard"and that he would be going with them, and thus establishing that the crowd was there to do a job. "Peacefully" fell away, as did his joining them on the march, when he grew strident near the end of his talk, telling them…

"We're going to have somebody in there that should not be in there and our country will be destroyed and we're not going to stand for that…We fight like hell. And if you don't fight like hell, you're not going to have a country anymore… Because you'll never take back our country with weakness. You have to show strength and you have to be strong."

Politicians always use words like "fight" goes one argument, but that ignores the context of that day — who he was talking to, why they had come, and the mission they thought had been assigned to them. It was a crowd that would indeed fight. A crowd that would seek to "Hang Mike Pence".

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