What The January 6 Committee Needs to Produce

The first public hearing of the January 6 Commission largely repeated what has been widely reported about that day, with a few new nuggets thrown in. Many on the liberal side point to the statements by former Attorney General Barr and First Daughter Ivanka Trump. However, Barr’s comments that he found no evidence of widespread voter fraud, and that he told that to The Donald, was old news. Ivanka’s video simply said that she believed Barr.

Where does that leave us on the ultimate question of The Donald’s involvement in the insurrection? Nowhere.

We have known for many months that many in The Donald’s White House came, albeit reluctantly, to the conclusion that he lost the 2020 election. It was close, but the final votes were confirmed, affirmed and reaffirmed by everyone whose job was to count the votes.

We have also known that many in the White House, from Barr and his Justice Department to Homeland Security and others, told The Donald that he had no case for an illegitimate election. He was clearly, unequivocally and repeatedly told that the counts were accurate, the voting machines were not corrupted, and there were not enough questionable ballots (e.g. Pennsylvania’s ballots received after election day) to reverse the results.

But that is not enough.

To implicate The Donald we need to hear evidence of two additional facts. Unfortunately, if the Commission had this evidence, I believe they would have presented it last Thursday. But perhaps there is more to come.

First, we need to know if The Donald actually believed that he lost. He heard it, but did he believe it? I can be told that my hair is gray, but if I am delusional and think that I am still 25 with a full head of brown hair, the truth (even the mirror) does not impact my belief.

How might we know what was in his brain? The Donald is a master at making public statements that imply exactly what he wants people to believe without actually saying what could implicate him in a crime or fraud. But I have to believe that he has unguarded moments, particularly with his family, when he might say something like, “Oh sure that fraud stuff is bullshit, but we need to keep saying it to stay here.” It seems clear that Don Jr., Eric, Guilliani, Hannity and the rest of the inner circle will never repeat such comments for the record.

The only hope is that there is much more in the Ivanka deposition that give evidence of such comments.

Second, we need to know if some of the acolytes around The Donald understood him to direct them to plan a violent attack on the Congress to disrupt the confirmation of the Electoral College. I think The Donald is careful enough to never say directly, even to crazies like Steve Bannon, Roger Stone, John Eastman, Michael Flynn, Ginny Thomas, that he wants them to organize a violent insurrection. But he could say things like “The election was so corrupt, so many bad things, we need to do whatever is necessary to protect our country.” And let them take it from there.

As an added layer of plausible deniability, the acolytes, particularly Bannon and Stone could have said similar things to the leaders of the Proud Boys and Oath Keepers with a wink and a nod.

To tie The Donald directly to this type of scheme, the mostly likely (even if is still unlikely) way to get direct testimony is to impose very, very harsh sentences on those convicted of entering the Capitol violently and illegally. Prosecutors will need to be able to give the militia leaders an uncomfortable choice: tell us what you know or face the majority of your adult life in prison. If someone breaks, prosecutors will need some corroboration, such as electronic, encrypted communications or handwritten notes.

The hardest part of this approach is connecting the scheme directly to The Donald. Again, there may be private conversations with the Trump family, but someone would have to be willing to send their father (or husband) to jail. Another unlikely approach may be to charge some government official in the inner circle with treason, an extremely high burden of proof. If that is possible, they get the choice between loyalty to The Donald and facing a potential death penalty.

Bottom line, from what we have seen so far (and I have to believe that we saw the most incriminating evidence available today during the prime time opening of the January 5 Committee), there will be no criminal prosecutions of The Donald or his inner circle.

The best we can hope for is legislation to modernize the Electoral College process to ensure that there can never be a repeat of the tragedy of the Big Lie.