The Justice Department’s current investigation of criminal efforts to overturn the results of the 2020 presidential election apparently is taking two paths. One investigative grand jury is considering “potential fraud associated with the false-electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim the election was rigged.” Another is focusing on “seditious conspiracy and conspiracy to obstruct a government proceeding, the type of charges already filed against individuals who stormed the Capitol on January 6.” The first grand jury is looking at nonviolent efforts to block the transfer of power; the second, at violent efforts.

Commentators have suggested that the Justice Department should focus particularly on whether former president Donald Trump committed seditious conspiracy. That crime consists of an agreement to oppose by force the authority of the United States or to hinder the execution of federal law. Convicting Trump of that offense along with the Oath Keepers and Proud Boys already charged with this crime would hold him responsible for the violence of January 6 in a way that a conviction of fraud would not.

In an earlier article, I noted that prosecuting and convicting Trump of another offense also would hold him responsible for this violence. Although the evidence that Trump committed this crime is much stronger than the evidence that he committed seditious conspiracy, this offense has gone nearly unmentioned in discussions of his potential criminality.  “Insurrection” under 18 U.S.C. § 2383 includes “assist[ing] … any … insurrection against the authority of United States or the laws thereof, or giv[ing] aid or comfort thereto.” My earlier article explained why Trump’s dereliction of duty during the 187 minutes he refused to ask his supporters to end their violent occupation of the Capitol, his failure to mobilize federal forces to secure the building, and his active encouragement of the rioters by tweeting that “Mike Pence didn’t have the courage to do what should have been done” establish his guilt of this offense.

This article offers other reasons for preferring a prosecution for insurrection to one for seditious conspiracy. It briefly explains why assisting an insurrection is likely to be easier to prove than entering an agreement with others to oppose the authority of the United States by force. It then examines the evidence that Trump intended the use of force or violence to oppose federal authority, showing that that this evidence became much stronger after the insurrection began than it was before the insurrection started. A final section notes gaps in the admissible evidence and suggests ways in which the Justice Department might fill them.

The Required Act

This section considers the “actus rei” of insurrection and seditious conspiracy—the acts required for conviction. Trump’s assistance to an ongoing insurrection would be easier to establish than his agreement to use force.

The distinction between aiding and agreeing sometimes looks sharper on paper than it does in practice. An agreement need not be verbal, and one can join a conspiracy after the crime to which she agrees is underway. A prosecutor might attempt to portray Trump’s acts and omissions before and during the insurrection as manifesting his assent to a seditious conspiracy, one in which Proud Boys, Oath Keepers, and ultimately hundreds of others agreed implicitly with one another to use force. A federal judge has in fact upheld a civil complaint alleging an implicit conspiracy between Trump and some January 6 rioters to hinder forcibly the performance of a federal official’s duties.

But why would the prosecutor bother? A charge of aiding the insurrection would be simpler, and this charge would be easier for a jury to understand. Moreover, the prosecutor’s effort to charge conspiracy might stumble over the federal rule that it takes two to conspire. Because the seditious conspiracy statute, like most federal conspiracy statutes, begins with the words “if two or more persons conspire,” the government would be required to show not only that Trump conspired with someone but also that someone conspired with him. (Many states have a different rule.) At about 1:30 p.m. on January 6, Oath Keepers leader Stewart Rhodes sent this message: “All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands.” Unlike seditious conspiracy, aiding an insurrection is a crime Donald Trump could commit all by himself. An insurrection charge keeps the spotlight on him.

The Required Mental State

The “mentes reae” of insurrection and seditious conspiracy—the mental states required for conviction—differ from each other only slightly. To establish either crime, the government would be required to prove that Trump intended the violence that occurred January 6. The required act and the required mental state must coincide, and the evidence that Trump intended violence became compelling only after the insurrection began.

 Before the Violence Began

 At 1:42 a.m. on December 19, 2020, a presidential tweet called for a “big protest in D.C. on January 6th” and added: “Be there, will be wild!”

Although this invitation conveyed no more than a hint of violence, the Proud Boys, the Oath Keepers, and other militant groups saw it as a call to arms. They purchased new communications equipment, began cooperating with one another, and made operational plans. Some spoke of “a red wedding [mass slaughter] going down on January 6,” recruiting “volunteers for the firing squad,” and “storming right into the Capitol.” A Twitter employee on a team responsible for content moderation noted the militants’ chatter and predicted that people would die.

The January 6 Select Committee presented no direct evidence that Trump was aware of this plotting or intended it. The best the Committee could do was show (1) photographs of Trump associates Michael Flynn and Roger Stone in the company of Oath Keepers; (2) a film of Stone reciting an Oath Keepers’ creed; (3) Trump’s instruction to Chief of Staff Mark Meadows on the evening of January 5 to call Flynn and Stone; and (4) Meadows’ subsequent calls to these associates of both the President of the United States and militants later indicted for seditious conspiracy.

Police and federal intelligence agencies warned of potential violence on January 6, and some of their messages reached the White House. But the Select Committee didn’t show that any of these messages reached the president. Even if Trump had been warned of the risk of violence and proceeded with his rally, this evidence wouldn’t go far toward showing that he intended this violence to occur.

On January 5, shortly after an 11-minute phone conversation with the president, Steve Bannon told his podcast audience:

All hell is going to break loose tomorrow. It’s all converging and now we’re on, as they say, the point of attack, the point of attack tomorrow. I’ll tell you this, it’s not going to happen like you think it’s going to happen, Ok? It’s going to be quite extraordinarily different. And all I can say is strap in.

That statement indicated that Bannon knew of Trump’s plans for January 6, and it’s likely his information came from the president. The events would be “extraordinarily different” from those expected, and Bannon’s references to the “point of attack,” “all hell breaking loose,” and “strapping-in” suggested they might be violent. A prosecutor would very much like to know what Trump said to Bannon during their 11-minute phone call, but no prosecutor is likely to find out.

On January 2, when Cassidy Hutchinson, an aide to Mark Meadows, asked Meadows about the plans for January 6, he replied: “There’s a lot going on, Cass, but I don’t know. Things might get real, real bad.” Again one would like to know more, but again this evidence doesn’t significantly implicate the president.

On the morning of January 6, Tony Ornato, Trump’s Deputy Chief of Staff for Operations, advised Meadows that the crowd gathering for the rally on the Ellipse included people carrying “knives, guns in the form of pistols and rifles, bear spray, body armor, spears and flag poles.” When Meadows asked, “Have you talked to the President?,” Ornato answered: “Yes, Sir. He’s aware.”

Backstage before the rally, Trump learned that magnetometer screening had kept people from filling an area he wanted filled for a photograph. Hutchinson heard him say: “I don’t effing care that they have weapons. They’re not here to hurt me. Take that effing mags away. Let my people in.” Trump’s statement that his supporters didn’t mean to hurt him prompted speculation about whom they did plan to hurt. But the president’s knowledge that many in his audience were armed didn’t necessarily establish his belief that they intended violence. They might have carried their weapons only to display them or to defend themselves if attacked by the armies of Antifa.

At the rally, Rudolph Giuliani’s remarks included the statement: “Let’s have trial by combat.” Trump himself said: (1) “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” (2) “We will not take it anymore.” (3) “And then we’re stuck with a president who lost the election by a lot … We’re just not going to let that happen.” (4) “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” (5) “I know everyone here will soon be marching over to the Capitol building. To peacefully, patriotically make your voices heard.” And (6) “I’ll be there with you.”

Trump meant to keep his promise to appear at the Capitol. He reacted with rage (and perhaps physically) to the refusal of Secret Service officers to drive him there.

The evidence just recited looks ominous, and one can easily suppose that, when Trump sent his followers marching to the Capitol, he intended just what ensued. A possible kicker, however, is that Trump meant to be at the Capitol himself. Is it likely that he planned to lead his followers personally in breaking windows, assaulting police officers, and chanting for Mike Pence’s execution? If not, what were his plans? Successful prosecution would require an explanation of why, if Trump meant violence to occur, he wouldn’t rather have been away from the scene when it happened. Henry II didn’t accompany his followers to the cathedral when, in 1170, they murdered Thomas Becket, and other heads of state and organized crime bosses who’ve  instigated crimes of violence generally have stayed home themselves.

What Trump meant to do at the Capitol is the largest gap in the evidence of his January 6 plans, and Cassidy Hutchinson’s testimony provides the only clues the Select Committee has given us for solving this puzzle. After describing this testimony, I’ll suggest one possible way of connecting its widely spaced dots. My hypothesis won’t incriminate Trump, and, unless prosecutors can exclude it, they won’t be able to show beyond a reasonable doubt that he incited the insurrection or conspired in advance to make it happen.

Describing conversations between Meadows and Representative Scott Perry and between Meadows and Rudolph Giuliani, Hutchinson testified: “I know that there were discussions about [the president] having another speech outside of the Capitol before going in. I know that there was a conversation about him going into the House chamber at one point.”

Providing security for a speech outside the Capitol would have been challenging, and the crowd was too large to address with only a bullhorn. Although such a speech at one point might have been part of Trump’s plan, the absence of any evidence of preparation for it makes it unlikely that these remarks remained on his agenda.

It does seem likely, however, that the president intended to enter the building and then the House chamber. Even if Trump once planned to give a speech to supporters outside the Capitol, he evidently would have delivered it “before going in.”

According to the Vice Chair of the Select Committee, Representative Liz Cheney, a conversation between Hutchinson and Rudolph Giuliani on January 2 “first provided Ms. Hutchinson a sense of ongoing planning for the events of January 6.”  As Hutchinson described this conversation:

[Rudy] looked at me and said something to the effect of, Cass, are you excited for the 6th? It’s going to be a great day. I remember looking at him saying, Rudy could you explain what’s happening on the 6th? He had responded something to the effect of, we’re going to the Capitol. It’s going to be great. The president’s going to be there. He’s going to look powerful. He’s—he’s going to be with the members. He’s going to be with the Senators.

On July 3, White House Counsel Pat Cipollone urged Hutchinson to “make sure [the trip to the Capitol] doesn’t happen,” saying that it would be “a legally terrible idea.” On the morning of January 6, Cipollone again asked Hutchinson to see that the president didn’t go. The lawyer warned that “we’re going to be charged with every crime imaginable if we make that movement happen.” According to her testimony, he specifically mentioned possible prosecutions for fraud, obstruction, and inciting a riot.

Trump nevertheless told aides both on January 6 and earlier that he planned to be at the Capitol. Hutchinson heard Meadows tell the president before he took the stage that the chief of staff was working on the arrangements. When Trump announced during his remarks that he’d be at the Capitol, National Security Council records show that Secret Service agents conferred about what route to take.

But when Trump ended his remarks, Hutchinson told Meadows she’d spoken with Ornato, the Deputy Chief of Staff for Operations. She reported that movement to the Capitol still wasn’t possible. Meadows said OK but then told Trump as they walked to the motorcade that he was working on it.

At some point after Trump’s announcement and before Hutchinson was aware of this announcement, she received a call from Kevin McCarthy, the House Minority Leader. She testified:

[H]e sounded rushed, but also frustrated and angry at me. I—I was confused because I—I didn’t know what the president had just said. He then explained the president just said he’s marching to the Capitol. You told me this whole week you aren’t coming up here. Why would you lie to me? I said I’m—I’m not lying. I wasn’t lying to you, sir. I—we’re not going to the Capitol. And he said, well, he just said it on the stage, Cassidy. Figure it out. Don’t come up here. I said I’ll—I’ll—I’ll run the traps on this and I’ll shoot you a text. I can assure you we’re not coming up to the Capitol. We’ve already made that decision.

After the call, Hutchinson conferred again with Ornato. She then assured McCarthy that, as she’d said, the president wouldn’t appear at the Capitol. Her initial text to Ornato concerning her conversation with McCarthy read: “McCarthy just called me too. And do you guys think you’re coming to my office?”

Five weeks after Hutchinson’s public testimony, McCarthy said he had no recollection of the conversation she described or of speaking with her on January 6. Moreover, her testimony was “so confusing,” McCarthy said, because he hadn’t watched Trump’s speech and didn’t know the president’s plans.

McCarthy’s credibility is doubtful. Just after January 6, the New York Times reported that he’d told other Republican leaders of his plans to ask Trump to resign. McCarthy called the report “totally false and wrong” and denounced the newspaper. Then a tape of McCarthy’s remarks showed the complete accuracy of the Times story. Hutchinson’s greater credibility appears to be bolstered by her contemporaneous written report to Ornato.

Most observers of Hutchinson’s testimony probably would concur with a former prosecutor who called her a superb witness and gave ten reasons why. But this portion of her testimony raised questions. Could she first have learned of planning for the events of January 6 when Giuliani told her four days earlier that the president would come to the Capitol—and at the same time have assured McCarthy “this whole week” the president wouldn’t be there? When Hutchinson said, “We’ve already made that decision [not to come],” whom did she mean? McCarthy’s question, “Do you guys think you’re coming to my office?,” implied that a presidential visit to the leader’s office had been on the table at some point. Was it? Was McCarthy consulted about any plan for Trump to enter the Capitol complex on January 6? If so, who spoke with McCarthy, what did this person say, and how did McCarthy respond? Hutchinson seems to know somewhat more about the president’s plans for January 6 and to have had a somewhat larger role than her public testimony reveals. Her conversation on January 6 with McCarthy couldn’t have been the first in which the two of them spoke about Trump’s possible agenda.

The following scenario is speculative, but it’s consistent with Hutchinson’s testimony and seems as plausible as any other. Trump didn’t intend to come to McCarthy’s office on January 6, but he did plan to meet another member of Congress or a senator. This legislator or perhaps a phalanx of friendly legislators would escort him into the House chamber while the joint session of Congress was underway. (The rules of both the House and the Senate give the president the privilege of the floor.) Another legislator then would move to invite the president to speak. Ultimately, after some procedural wrangling and perhaps a vote, Trump might be allowed to address the joint session. Or he might be denied permission, allowing him and his supporters to denounce the muzzling of a president and the unwillingness of his enemies to hear what had to say. If the defiant president refused take no for an answer, the presiding officer, Vice President Pence, might be required to order him removed him from the chamber. Television viewers throughout the world would watch it all, the fitting last hurrah of a legendary showman.

What role the demonstrators outside the Capitol would play in this drama is uncertain, but perhaps they’d be a prop or a visual aid. If allowed to speak, Trump’s address would describe his rally, the march to the Capitol, and the thousands protesting outside the building who, like millions of others, believed that the election had been stolen. He might argue that Congress should at least delay its proceedings to allow state legislatures to investigate more fully whether the demonstrators’ beliefs were correct. Split television screens might show scenes inside and outside the building.

Trump probably didn’t have this exact scenario in mind when he called for a rally on January 6, but it would fulfill his prophesy: “Will be wild!” He probably did have some plan in mind when he spoke to Steve Bannon on January 5, and this scenario would fulfill Bannon’s prophesy too: “[I]t’s not going to happen like you think it’s going to happen. It’s going to be quite extraordinarily different.” And the hypothesized plan also would fulfill Rudolph Giuliani’s prophesy: “He’s going to be with the members. He’s going to be with the Senators. He’s going to look powerful.”

If I’m correct that the hypothesized scenario is as plausible as any other, one wonders whether history might have been different if Secret Service agent Bobby Engle had obeyed Trump’s command: “I’m the f’ing president, take me up to the Capitol now.” Engle should have done precisely what he did, but might the invasion of the Capitol have been avoided and several lives saved if he’d followed the president’s instructions? Trump probably would have entered the House chamber well after rioting began but before rioters forced their way into the building. If these supporters had learned that the president was before Congress and was making a final effort to stop its certification of the electoral votes, would their violence have continued?

Whether or not Trump’s supporters would have desisted, a jury couldn’t conclude beyond a reasonable doubt that the president intended the violence of January 6 if he might have planned only an address to Congress or might have had some other agenda that wouldn’t have been aided and would in fact have been impeded by what occurred.

 After the Violence Began

 Whether or not Trump wanted the insurrection to happen, it happened. Fox News broadcast it live, and the president watched it unfold. Before long, Trump had a decision to make. Between 1:49 p.m. and 2:24 p.m. (the time of Trump’s tweet about the vice president), “staff repeatedly came into the room to see [the president] and plead that he make a strong public statement condemning the violence and instructing the mob to leave the Capitol.”  Trump consistently refused.

With the first of the president’s refusals, ambiguity vanished, and his criminal intent became clear. Why did he decline to ask his followers to end their violent conduct? There’s only one plausible answer. He wanted it to continue. No other inference is possible.

With the president’s first refusal to do his constitutional duty to take care that the laws be faithfully executed, the proof of his criminal intent leapt to beyond a reasonable doubt. And then the amount of incriminating evidence went up. Every additional display of violence on Fox News and every additional rejection of a request to do his duty made the case against him stronger.

One plea came from Minority Leader McCarthy, who informed Trump that the rioters were breaking into offices and who urged him to call them off. McCarthy now refuses to speak to the Select Committee or the press about the president’s response, and, if subpoenaed to appear before a grand jury, he’s likely to claim that the Constitution’s Speech and Debate Clause entitles him not to speak to that body either. Shortly after his January 6 conversation with the president, however, McCarthy told Republican Representative Jaime Herrera Beutler and other members of Congress what Trump said: “Well, Kevin, I guess these people are more upset about the election than you are.”

At 2:24 p.m., Trump posted his inflammatory tweet about the vice president. Deputy Press Secretary Sarah Matthews, who’d often travelled the president, testified that she’d “seen the impact that his words have on his supporters.” She described the tweet as giving rioters “the green light.”

Shortly thereafter, Hutchinson heard enough of a conversation between the president and a group of his advisors to realize the subject of their discussion—the crowd’s chants to “Hang Mike Pence.” The advisors ultimately convinced the president to send a second message at 2:38 p.m.: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful.”

This message informed the insurrectionists that Trump disapproved of brutalizing police officers—and perhaps of nothing else they were doing. The Select Committee presented two rioters’ taped reactions: “That’s saying a lot by what he didn’t say. He didn’t say not to do anything to the Congressmen.” And: “He didn’t [say] to stand down.” Press Secretary Kayleigh McEnany told Deputy Press Secretary Sarah Matthews that “the president did not want to include any sort of mention of peace in that tweet, and that it took some convincing on their part, those who were in the room.”

Later, Hutchinson heard White House Counsel Pat Cipollone say to Chief of Staff Mark Meadows: “[W]e need to do something more. They’re literally calling for the vice president to be hung.” Meadows replied: “You heard him, Pat. He thinks Mike deserves it. He doesn’t think they’re doing anything wrong.”

At 2:53 p.m., Donald Trump, Jr. wrote to Meadows: “He’s got to condemn this shit ASAP. The Capitol Police tweet is not enough.” Meadows concurred and said he was “pushing it hard.” The younger Trump reiterated: “This is one you go to the mattresses on.” He later explained that “go to the mattresses” is a “Godfather reference” meaning “going all in.”

At 3:13 p.m., Trump sent another message, apparently inviting continued occupation of the Capitol while “remaining” peaceful: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember WE are the Party of Law & Order–respect the Law and our great men and women in Blue. Thank you!”

At 4:17 p.m., with the D.C. National Guard and other troops prepared to end the insurrection forcibly, Trump at last released a video asking his followers to go home. He began by saying: “I know your pain, I know you’re hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now. We have to have peace.” As the video ended, Trump declared: “We love you. You’re very special. … I know how you feel, but go home, and go home in peace.”

Before the day ended, the president gave more comfort to people who had injured 114 police officers, invaded the Capitol, terrorized members of Congress and Congressional staffs, and disrupted a joint session of Congress. At 6:01 p.m., he tweeted: “These are the things that happen when a sacred landslide victory is so unceremoniously, viciously stripped away from great patriots … Go home with love and peace. Remember this day forever.”

Proving Trump’s intent to further the violence of January 6 would establish the mental state required for his conviction. His reasons for assisting the insurrection wouldn’t be of any legal significance. But what might these reasons have been?

Some were probably instrumental: Trump hoped the riot would delay Congress’s certification of Joe Biden’s victory and ultimately keep Biden from becoming president. Using phones whose calls wouldn’t be noted on a White House log, Trump called senators as the violence progressed, urging them to vote against or delay certification.

But other motives might simply have been expressive—comparable to Trump’s motives for allegedly throwing his lunch at the wall when Attorney General Bill Barr reported that the Justice Department hadn’t found evidence of widespread voter fraud.

Whatever Trump planned to do upon arriving at the Capitol, the Secret Service had thwarted his plans. Whether or not the president lunged at the steering wheel of his vehicle and assaulted a Secret Service agent as Hutchinson said she’d heard, several people witnessed his rage. And the president’s anger at the Secret Service paled beside his fury about vice president. Until 1:00 p.m., convincing Pence to embrace the baseless legal theories of John Eastman had seemed to be Trump’s best hope of remaining in office.

That hope had been dashed, and, indeed, all of Trump’s legal and illegal efforts to overturn the election now appeared to have been in vain—the  lawsuits; the embrace of every preposterous claim of election fraud that passed by; the slander of election workers; the plan to seize voting machines; the plan to name as acting attorney general the only Trump appointee in the Department of Justice willing to lie for him; the threatening of state election officials; the badgering of state legislators; the preparation and submission of false election certificates; and the “wild” rally itself.

Even at this disheartening moment, however, Trump could have taken comfort in the fact that he had many dedicated and passionate followers. He’d brought thousands of them to the Ellipse and told them that if they didn’t fight like hell, they weren’t going to have a country anymore. And when almost everything seemed lost, these followers took matters into their own hands. Perhaps a frustrated and enraged president then thought: RIGHT ON!

Some Remaining Investigative Work

The evidence just recited shows beyond a reasonable doubt that Trump intended to assist an insurrection against the authority of the United States. But readers of this article might be more impressed by this evidence than actual jurors would be by the evidence presented at a criminal trial. One reason is that some of the evidence developed by the Select Committee and reiterated in this article wouldn’t be admissible in its current form.

The Select Committee frequently presented what lawyers call “hearsay within hearsay.” At a trial of Donald Trump, his own statements would be admissible under an exception to the hearsay rule—but only if the government could establish through admissible evidence that he made them. And none of the people who supplied evidence of Trump’s statements during the 187 minutes he refused to perform his constitutional duty were present at the time he made them. These witnesses quoted the descriptions of others.

This difficulty doesn’t automatically bar the testimony of these witnesses. If, for example, Trump and Meadows conspired to defraud the United States, and if Meadows described one of Trump’s statements to Hutchinson in furtherance of this conspiracy, Hutchinson’s testimony about that statement would be admissible against both Meadows and Trump (and not just in a prosecution for the conspiracy itself). But if Meadows described Trump’s statement only because he knew Hutchinson would be interested and not in furtherance of the conspiracy, her testimony would be admissible only against Meadows (assuming he was also on trial). The issue is complicated, but a court often would require the government to prove Trump’s statements (and acts) through the testimony of witnesses who were in the room where they happened.

The Justice Department may be developing this evidence. One of the grand juries now investigating efforts to overturn the 2020 election has issued a subpoena to former White House Counsel Pat Cipollone. Although Cipollone often was in the room with Trump, the Select Committee secured his partial testimony by agreeing not to require him to reveal any of Trump’s statements on January 6. The Committee did so because it didn’t want to litigate Cipollone’s claims of evidentiary privilege, but the Justice Department has no reason to make the same concession. Especially in light of the D.C. Circuit’s ruling in Trump v. Thompson that, under any possible standard, the public interest in uncovering the causes and circumstances of the January 6 attack outweighs the public interest in preserving the confidentiality of presidential communications, Cipollone lacks a tenable claim of either executive or attorney-client privilege. A legal system that proved itself unable to dispatch his privilege claims and do so rapidly would disgrace itself.

With claims of privilege off the table, Cipollone could give a full, admissible account of (among many other things) the discussion between Trump and his advisors concerning the president’s response to the “Hang Mike Pence” chants.

Another witness who probably could give a full, admissible account of that conversation is former Press Secretary Kayleigh McEnany. Although McEnany gave a deposition to the Select Committee and although the public heard her one-sentence description of part of this discussion, the sentence didn’t come from her testimony. McEnany whispered it to Deputy Press Secretary Sarah Matthews, and Matthews repeated it in her testimony (making the evidence hearsay within hearsay and probably inadmissible in a criminal trial). It seems likely that the Committee allowed McEnany as well as Cipollone to limit her testimony and that, with claims of privilege off the table, she’d be more informative.

The Department also might subpoena witnesses whose testimony the Select Committee was too gentle to demand—particularly former Vice President Pence. Pence could give (among other things) a full, admissible account of the “don’t be a pussy” telephone call in which the president sought to intimidate him shortly before the January 6 rally.

Trump’s lawyers might object to the admission of some of the most striking evidence the Select Committee presented of turmoil in the White House during the insurrection. Many of the urgent pleas for presidential action that came from friends, family, and Fox News personalities consisted of messages sent to Meadows, and the Committee presented no direct evidence that Trump ever saw or learned about them. Trump’s lawyers might argue that, in the absence of this evidence, the messages would have no bearing on the president’s state of mind or any other issue.

An appropriate response would be that circumstantial evidence—Meadows’ position, his frequent consultation with the president, and the identity of the messages’ senders—makes it likely that Meadows did pass them on or at least described them in general terms. But a prosecutor certainly would prefer to have direct evidence that Trump knew of the messages. Perhaps witnesses like Cippollone and McEnany could supply this evidence. If they couldn’t, prosecutors might consider bargaining with witnesses facing potential prosecution themselves.

In particular, prosecutors might consider negotiating with Meadows. The chief of staff probably did not see a lengthy prison term as something he signed up for when he took that job with Trump.

If the various nonviolent criminal efforts to overturn the results of the 2020 presidential election were treated as a “hub and spokes” conspiracy to defraud the United States (I’m varying somewhat a theme by Andrew Weissmann), the hub would appear to consist of three lead conspirators—

Trump, Giuliani, and Meadows. Meadows’s centrality cuts both ways. On the one hand, he’s among the apparent conspirators least deserving of a break, and, on the other, he’s the conspirator best positioned to tell the whole story.


All of this suggests that the Justice Department’s investigation should be devoted as much to developing stronger and more clearly admissible evidence of facts already known or strongly suspected as it is to discovering unknown facts. But in seeking to make the evidence that would be heard in a criminal trial as persuasive as the Select Committee’s mix of admissible and inadmissible evidence, the Department could obtain the full accounts of witnesses who, so far, have told only part of the story or none at all. Their testimony ultimately might enable the Department to present an even more powerful case than the one already assembled and presented by the Select Committee. And the one assembled and presented by the Select Committee is devastating.


Editor’s note: Read part one of this two-part series: Albert W. Alschuler, Trump and the Insurrection Act: The Legal Framework, August 19, 2022