The target audiences of the US House of Representatives’ January 6th committee hearings, which this week heard another batch of sensational evidence , are twofold: the voters in the mid-term elections, and prosecutors, not least Justice Secretary Merrick Garland. After 18 months, the justice department’s investigation of the Capitol attack has resulted in more than 840 criminal cases being filed against rioters on charges ranging from misdemeanour trespass to seditious conspiracy. But not yet against villain-in chief Donald Trump who, many in Washington believe, is going to escape prosecution.
Garland, who would undoubtedly like to prosecute the former president, has been slow to act and meticulously careful to avoid being dragged into political controversy. He knows that any prosecution of a former president would have to be bulletproof and seen to be so. A botched prosecution would make Trump stronger and could even help re-elect him.
Garland’s task – to prove beyond doubt that Trump had criminal intent – is a high bar that means showing not just that he tried to overturn the election and obstruct Congress but that he was fully aware what he was doing was illegal.
The evidence this week of Cassidy Hutchinson, an aide to final Trump chief of staff Mark Meadows, should make that easier. She said she witnessed repeated attempts to persuade Trump that ordering officials to “find” non-existent ballots for an election that had not been “stolen” was illegal. This could help sustain charges of solicitation of election fraud and conspiracy to fabricate electoral certificates.
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She gave evidence that Trump knew demonstrators were armed and encouraged them to go to Congress and “fight, fight”, potentially laying the basis for obstruction of Congress and seditious conspiracy criminal charges. We heard that John Eastman, the former Supreme Court clerk and architect of the plan for vice-president Mike Pence to reject the results, admitted to colleagues that his strategy was unconstitutional. And yet, lawyers warn, there may not be clear proof of intent. They suggest Trump could claim he was acting in good faith to address what he sincerely believed was fraud in the election.
Although persuading Garland to press charges may remain an uphill battle, on the public opinion front the well-choreographed hearings are certainly successful. While 40 per cent of America still believes the 2020 election was stolen, polls find three-quarters of voters have heard/read about the House investigation, and 60 per cent support it, including a third of Republicans. And 58 per cent believe that Trump should be charged with crimes related to his actions on and before January 6th, up six percentage points from before the hearings started, and including almost 20 per cent of Republicans.