Via OLD GOATS with Jonathan Alter Substack

Over the last six months, I’ve posted an extensive recap and analysis of each of the 10 hearings of the January 6th Committee — the most thorough available text coverage of these historic proceedings.

And now, here’s Day Ten:

History will remember President Trump for a series of firsts — the first president to reject the peaceful transfer of power; the first president impeached twice; and now the first former president referred by Congress for criminal prosecution. While federal prosecutors are under no obligation to follow the legal road map laid out by the January 6th Committee, the charges are so well substantiated that it’s a good bet they will.

Whatever happens next, the January 6th Committee has done something astonishingly rare in our cynical age of dashed expectations. Think of it this way: The only time you ever hear the word “glory” anymore is in an ironic context — “They didn’t exactly cover themselves in glory.” Well, in this case, members of Congress — what Mark Twain called the only “distinctly native American criminal class”— actually did so. The nine members — Chair Bennie Thompson, Vice-Chair Liz Cheney, Zoe Lofgren, Adam Kinzinger, Adam Schiff, Jamie Raskin, Stephanie Murphy, Pete Aguilar and Elaine Luria — have secured a place in history by doing their jobs gloriously well.

Just as older Americans remember the Senate Watergate Committee hearings half a century ago for teeing up a scandal that would lead to the first resignation of an American president, the January 6th Committee will long be remembered for setting a new standard for disciplined, non-partisan and highly effective committee work. These members educated the country, helped prosecutors frame their cases and strengthened American democracy by establishing a complete historical record of the “auto-coup” that Trump tried to mount against it. It’s fair to say that the Committee built much of the momentum leading to the revision of the Electoral Count Act that was slipped into the omnibus budget bill approved this this week—new laws that will make fake electors, a rogue vice-president and other elements of Trump’s plot much harder to pull off the next time.

The Committee recommended Trump be prosecuted on four counts: obstructing an official proceeding, conspiracy to defraud the United States, conspiracy to make false statements, and — most significantly, because conviction would disqualify him from holding public office — inciting, assisting or giving aid and comfort to an insurrection.

None of this would have been possible without the craven and bone-headed machinations of House Minority Leader Kevin McCarthy. Having already gone back on his pledge to support a 9/11-style bipartisan commission to investigate the events of January 6th, McCarthy — likely at Trump’s instruction — decided to boycott the select committee, which had offered Republicans five of twelve seats. On July 21, 2021, he announced that he was pulling the remaining three Republicans from the panel because House Speaker Nancy Pelosi had bounced two other Republicans — Rep. Jim Jordan because he was a target of the investigation (thanks to his repeated January 6th communications with Trump), and Rep. Jim Banks because he had denounced the proceedings. Pelosi responded by appointing Cheney and Kinzinger — the only two Republicans who had voted to authorize the committee.

If McCarthy hadn’t withdrawn cooperation, three Republicans who voted against impeachment —Reps. Rodney Davis, Kelly Armstrong and Troy Nehls (who also voted to overturn the election) — would have likely spent the last 18 months throwing monkey wrenches into the committee’s work, undermining the serious tone and turning the hearings into just another useless circus.

Instead, we got something virtually unheard of nowadays in Washington — an effort that was not just bipartisan but nonpartisan. Members who disagree on nearly every policy issue joined in common purpose. Internal squabbles were related to process and focus, not politics. Of the more than 1000 witnesses interviewed by the committee members and staff, the vast majority were Republicans, including many who worked for Trump until he left office.

With the help of James Goldston, a British-born producer and former president of ABC News, the January 6th Committee reinvented congressional hearings for today’s world of short attention spans. Instead of interminable throat-clearing and the usual freelance grandstanding, we were treated to riveting video, tight, scripted statements and pertinent questions for well-prepared witnesses. In both daytime and primetime, the hearings won much higher ratings than expected because they were good TV — dramatic, informative and willing to repeat story lines in case you missed the last episode.

Even this week, the Committee had a sharp sense of public relations. Instead of releasing the entire report at once, it held the hearing on Monday, released a 160 page executive summary on Tuesday, transcripts of more than 30 key witnesses on Wednesday, additional witnesses, including Cassidy Hutchinson, on Thursday afternoon, then the 845 page final report itself late that evening, stretching what could easily have been a one-day story into five. The report was written with the same dramatic verve that characterized the hearings—a compelling narrative that will set a high bar for all future congressional scribes.

It was fashionable last summer to use polls to suggest that the hearings “didn’t move the needle.” The midterms proved that assumption was almost certainly wrong. In state after state, election deniers went down in defeat even as other, more reasonable but still anti-abortion Republicans prevailed. Independents broke sharply for Democrats in a year when most pundits predicted a red wave. In the closing days of the campaign, the threats to democracy highlighted by the committee — and President Biden — moved toward the top of voters’ concerns and lent intensity to Democratic get-out-the-vote efforts.

The final meeting had a bittersweet quality. This was the last we’ll see of Liz Cheney and Adam Kinzinger in their official capacity (Cheney lost her primary and Kinzinger retired). They will be remembered as profiles in courage — members who put country over party, which is what we should get back to expecting of our elected representatives when the stakes are so high.

Reps. Liz Cheney and Adam Kinzinger on the January 6th Committee

As in the previous nine hearings, every member brought something to the proceedings. “There’s one factor I believe is most important in preventing another January 6th: accountability,” Bennie Thompson said. “Accountability that can only be found in the criminal justice system…. I hope we’ve helped make clear that there’s [also] a broader kind of accountability. Accountability to all of you, the American people.”

January 6th Committee Chair Bennie Thompson

Liz Cheney, who described her great-great-grandfather volunteering for the Union army in the Civil War, closed on Trump’s violation of the law and “utter moral failure and a clear dereliction of duty” when he did nothing for hours as “the Capitol was invaded, the electoral count was halted, and the lives of those in the Capitol were put at risk.” Previewing the 14th Amendment argument that would gather force if Trump is convicted on the charge of insurrection and thus eligible to be disqualified from holding power, she concluded that “No man who would behave that way at that moment in time can ever serve in any position of authority in our nation again. He is unfit for any office.”

The Committee then offered another video summation of damning testimony and mayhem on January 6th, an approach we’ve grown accustomed to that works beautifully in the court of public opinion, though will not be available to prosecutors in a court of law. On the other hand, the special prosecutor, Jack Smith, has many more tools than the Committee for gathering evidence.

For instance, we again saw video of former White House Counsel Pat Cipollone awkwardly acknowledging that the entire White House staff wanted Trump to tell his supporters to leave the Capitol, but he invoked executive privilege when it came to his own conversations with the president that day. While Cipollone’s December 2 testimony before the grand jury is secret, we know that prosecutors have the authority to compel him to reveal Trump’s excuse for waiting more than three hours before doing anything. The same goes for former Chief of Staff Mark Meadows, who refused to testify before the Committee. If he doesn’t testify against Trump, he could face prosecution himself.

Zoe Lofgren introduced some new testimony from Hope Hicks, who worked side-by-side with Trump for years. After Hicks told Trump that any fraud wasn’t on a scale to affect the outcome, Trump replied, “Nobody will care about my legacy if I lose, so that won’t matter. The only thing that matters is winning.” This could prove useful in determining Trump’s state of mind. More than one of the possible charges against him could turn on whether he knew he had lost. Hicks was only one of many who testified that they had told him he did.

Lofgren has specialized in following the money — Trump’s grift — and she suggested the Committee had heard sketchy reports of funds being used for witness tampering:

For example, one lawyer told a witness, the witness could, in certain circumstances, tell the committee that she didn’t recall facts when she actually did recall them. That lawyer also did not disclose who was paying for the lawyer’s representation, despite questions from the client seeking that information. He told her, “We’re not telling people where funding is coming from right now.” We’ve learned that a client was offered potential employment, that would make her, “financially very comfortable,” as the date of her testimony approached, by entities that were apparently linked to Donald Trump and his associates.

On Tuesday, we learned that the heavy here was Stefan Passantino, the top ethics lawyer for the Trump White House (you can’t make this stuff up), and the target of the tampering was Cassidy Hutchinson, the former top aide to Trump’s chief of staff, Mark Meadows, and one of the heroes of these hearings for her riveting and highly incriminating testimony. Let’s hope Jack Smith is having better luck than the Committee in getting to the bottom of this.

Adam Schiff, a former prosecutor, has been focused on one of the strongest parts of the case against Trump — his “state pressure campaign,” which extended beyond “find me 11,780 votes” in Georgia to what has come to be called the “fake elector” part of the coup attempt. Schiff reiterated how “Trump and his enablers repeatedly pressured state officials to take action to overturn the results of the election.”

Adam Kinzinger homed in on another key piece of evidence for the conspiracy charges, how after Attorney General William Barr resigned, Trump “requested that the acting leadership of the department, Jeffrey Rosen and Richard Donoghue, quote, ‘Just say the election was corrupt and leave the rest to me and the Republican Congressman.’ In other words, ‘Just tell a small lie to put the facade of legitimacy on this lie, and the Republican Congressman and I can distort and destroy and create doubt all ourselves.’” Kinzinger then re-played the clip of Donoghue recounting how he told Jeffrey Clark, who had wormed his way into a plot with Trump to have state legislatures determine the outcome, “What you are proposing is nothing less than the United States Justice Department meddling in the outcome of the presidential election.”

Pete Aguilar, who was just elected to the House Democratic leadership team, recapped the pressure campaign against Vice President Pence. Beyond Trump calling his vice president “a wimp” and “a pussy,” the Committee produced evidence that John Eastman, who advised Trump that Pence could decide the election, knew in advance that it was a bogus theory. If this is proven in court, then Eastman, who was also the subject of a criminal referral by the Committee, would be seen as joining Trump in a conspiracy to commit fraud, not just giving him bad legal advice, as Trump’s defense will likely argue.

Aguilar touched on evidence that will make it hard for Trump to claim that he wasn’t “aiding and abetting” an insurrection: “Once the riot began, President Trump deliberately chose to issue a tweet attacking Mr. Pence, knowing that the crowd had already grown violent. Almost immediately thereafter, the crowd around the Capitol surged, and between 2:30 and 2:35 PM, the Metropolitan police line on the west front of the Capitol broke.”

Stephanie Murphy returned to a crowd favorite, Eric Herschmann, a senior adviser to Trump and one of his lawyers in the first impeachment trial. Hope Hicks’ testimony suggests that Herschmann, who was consistently candid before the Committee, will tell the grand jury that he recommended to the president that he convey a message that people should be peaceful on January 6th, and—according to Hicks— “the president had refused to do that.”

Elaine Luria reminded us of Trump’s last tweet on January 6, which was posted at 6:01 pm. “He did not condemn the violence, instead he attempted to justify it,” Luria said. The tweet has lost none of its capacity to shock:

Luria concluded:

“President Trump lit the flame. He poured gasoline on the fire and sat by in the White House dining room for hours watching the fire burn, and today he still continues to fan those flames.”

Jamie Raskin, a constitutional law professor, spoke last. It fell to him to outline the specifics of the criminal referrals, which were drafted by an informal subcommittee he chaired. Before doing so, he uncorked a line that will always be connected to the Trump era:

“Ours is not a system of justice where foot soldiers go to jail and the masterminds and ring leaders get a free pass.” 

Too often, of course, that is our system, with street-level drug dealers going to jail while kingpins escape prosecution, and small-fry mortgage brokers convicted in the sub-prime mortgage crisis while bank CEOs went free.

But Raskin was appealing here to our idealized notions of justice, to which, as it happens, Attorney General Merrick Garland also genuinely subscribes. “No person is above the law in this country,” Garland has said on several occasions. “I cannot say it any more clearly than that.”

In his polite fashion, Raskin was saying: Prove it. You have convicted hundreds of January 6 “foot soldiers,” now it’s time to go after the “masterminds and ring leaders.”

So yes, the Democratic Congress has no official power to compel the DOJ to prosecute Donald Trump on January 6th-related charges. And yes, the smaller Mar-a-Lago documents case will likely ripen sooner. But before the Committee’s stagecoach turns into a pumpkin next month, it is putting strong institutional and public pressure on the department to move forward on the more momentous case, too. With lots of grand jury activity and a kick-ass special prosecutor, this may be like pushing on an open door.

Even though we know little or nothing about the government’s plans, the die of this case seems cast. And with Trump weakened politically by the midterms (and by dining with Nazi-lovers, among other fiascos), it’s much less likely than it was last year that his cries of “witch hunt” will get much traction outside of his shrinking base. The stakes in prosecuting him are still large and the complexities of winning still daunting. But bringing this bigger case will not “rip the country apart,” as we have so often been told. It will hasten the restorative justice that might finally close this sorry chapter in our haggard national life.

Jonathan Alter

Follow Jonathan on Twitter @jonathanalter. Jonathan Alter is a contributing editor of the Washington Monthly. He is the author of His Very Best: Jimmy Carter, a Life.