John Trumbull’s painting shows George Washington resigning his powers, launching peaceful transfer.

Listening for Legal Intent

Terry Schwadron


Terry H. Schwadron

June 13, 2022

Jan. 6 Select House Committee hearings resume this morning focusing on whether Donald Trump knew that he had lost the 2020 election and that he moved on plans to remain in office despite an insincere belief that the presidential election had been stolen.

Anyone who has not been on a desert island since then has heard Trump make the repeated claims, so at first glance you might wonder why this is the focus. The logical deduction is because these hearings are not just about re-telling the full tale; they have become about taking sides right now on the question of fighting off a continuing attack overthrow of our government — sides that need not be politically partisan, but that have been adopted that way.

Showing the evidence that Trump had been told — repeatedly — that his claims were baseless would start to build a case about his legal “intent” to remain in office, a necessary component of willfulness towards any prospective criminal charges resulting from the eventual Jan. 6 rioting, interference in congressional certification of the election, and malfeasance to stop the violence.

So, we need to listen with an ear both based on common sense and common understanding of accountability before federal law — a reflection that these hearings have multiple audiences in Congress, before the public and at the Department of Justice.

As PressWatch puts it, the documented answers to such questions as to whether Trump and his inner circle knew for sure that Trump had lost the election and that there was no evidence of the kind of widespread fraud that he claimed thereafter in disputed public remarks, losing lawsuits and feckless legislative and election audits would establish a legal baseline for criminal intent questions.

Any fund-raising done based on such a “massive effort to spread false and fraudulent information,” as Cheney put it, might end up in criminal charges as well. And there appear to be a load of other potential crimes lined up in other aspects of the hearings — all awaiting action from a Justice Department that appears skittish about sinking into the morass of charges involving partisan politics.

Who Told Trump He Lost?

So, when a clip of Jason Miller, a Trump campaign spokesman, appeared at the opening hearing last week saying that the campaign data people had directly informed Trump that he was losing, that may well have legal ramifications. So, too, might the testimony from former Attorney General Bill Barr who profanely rejected the substance of any fraud claims in his video clip reflecting what he told Trump prove legally important.

We should expect some examination of more such testimony in today’s hearing.

The panel’s leaders, Representatives Bennie Thompson (D-Miss.) and Liz Cheney (R-Wyo.) asserted that they have gathered testimony that Trump was told multiple times that he faced a loss. The result, they said, was an emerging seven-part plot that included political, legal, and finally physical confrontations to throw out the official voting record in a failed attempt to keep Donald Trump in office — a near coup.

The coming hearings will explore development and execution of these overlapping plots. If Trump and associates know that Vice President Mike Pence lacked authority to overturn the election, but proceeded to argue that anyway, that also would underscore intent, according to Jon Steinman, Protect Democracy communication director.

As The Week noted, the committee heads said multiple witnesses were able to prove that Trump was told — many times and by different people — that the election was not stolen from him, including Miller’s remarks “delivered to the president in pretty blunt terms that he was going to lose.

Cheney said that Trump ignored the courts, the Department of Justice, the Department of Homeland Security, and Republican state officials who told Trump the election was fair, choosing to invest “millions of dollars in campaign funds” so he could purposely spread false information in a campaign that resulted in provoked violence on Jan. 6.

Useful Resource on the Law

If you find the content of these hearings addicting, you may be interested in a ne Brookings Institution guide to the hearings and questions of criminality from Norman Eisen, Donald Ayer, Joshua Perry, Noah Bookbinder, and E. Danya Perry, who have been part of the government organization Citizens for Responsibility and Ethics in Washington (CREW).

The report, “Trump on Trial: A Guide to the January 6 Committee Hearings and the Question of Criminality” is a comprehensive review of the proceedings, the investigation to day, the key players in the attempt to overturn the election, the known facts regarding their conduct — and the criminal law applicable to their actions.

As a matter of legal exposure, prime is the evidence about whether Trump conspired with lawyer John Eastman, Justice’s Jeffrey Clark and others to defraud the United States in violation of federal law by scheming to block the electoral count and to subvert the Department of Justice’s election enforcement work.

The report’s authors believe that there is substantial evidence of all the essential elements of those federal and state offenses and suggests there is a substantial basis for prosecutors at Justice and at the Fulton County (Ga.) District Attorney’s office to proceed with criminal counts on the basis of law, politics aside. Recent opinions from a federal court in Washington over enforcement of subpoenaed records agree.

Wednesday’s hearing will outline Trump’s alleged plot to install Jeffrey Clark as acting attorney general to advance the efforts to overturn the election. Following hearings will focus on efforts to pressure Pence to overturn the election and on Trump’s attempts to pressure state officials, as well as how he “summoned a violent mob and directed them illegally to march on the United States Capitol.”

Generally, personal involvement by Trump and those acting on his behalf through each step could constitute legal basis for any Justice Department review.