The Investigative Committee used the Capitol Police’s testimony first to set the tone, to remind people that the stakes couldn’t be higher. But now with the new notes coming out from the Acting-Attorney General’s office, Jeffery Rosen, the events of that day take on new importance and the police officers’ testimony may end up making prosecuting Trump that much easier.
NBC gathered a group of former federal prosecutors to discuss the possibility of prosecuting Trump for the riot itself, the many difficulties and the few things that might be starting to emerge to make it more likely.
Former federal prosecutors Mike Ferrara and Shawn Crowley, teamed up with attorney Magdalene Zier, to discuss the testimony’s power, the answers given by the police who defended that Capitol from the January 6. The consensus is that the testimony has made prosecution of Trump easier:
“While criminal charges remain unlikely because of the protections afforded to any speaker under the First Amendment and recent court cases that limit the scope of the Anti-Riot Act, the new evidence could help prosecutors to thread the needle.
Specifically, the officers’ testimony could support the notion that Trump’s calls on supporters to reject Congress’ certification of the election  were not merely the musings of a sore loser, but were instead deliberately calculated to instigate violence and further his multifaceted strategy to overturn the election.”
We just today reported on the fact that one defense attorney is basing the defense of his 17 clients on the theory that their behavior was authorized by the president of the United States and thus could not possibly be a crime. They were put in an impossible situation, either commit a crime or disobey a direct order of the president of the United States. It is an extremely weak criminal defense, but if he gets testimony from the defendants about how they believed they were acting under direct orders, it buttresses the theory set forth above.
“This could be helpful in a criminal case to the extent that it demonstrates that Trump was connected to the outcome of disrupting the election results and taking action to achieve it, rather than just railing against the process,”
Say it was fraudulent and leave the rest to me and Congress. That is where the new notes play a major role (and presumably more words were spoken). Is this the act that was “left to Trump”?
“Ultimately, Anti-Riot Act prosecutions have been too few and too fraught for us to anticipate how a judge might weigh rioters’ statements,” the authors concluded. “Revelations that rioters acted not just in Trump’s name but at his direction could strengthen a criminal case against him — and help the government to heed Capitol Police Officer Harry Dunn’s emotional entreaty at last week’s opening hearing that we ‘get to the bottom’ of who was really behind the hateful events of Jan. 6.
Prosecuting Donald Trump for the actual insurrection was always a long shot and always will be. But there are crimes that could be committed that are not quite as “prominent” as those being responsible for the attempted-coup (though he should at least be charged, there is nothing to indicate that Merrick Garland has any interest in charging Trump.) We are thinking about conspiring with Stone, Flynn, and others, who could be charged with organizing the riot. Charging someone with conspiracy is one of the strongest tools in the prosecutor’s box because hearsay isn’t automatically kept out of evidence, often – the hearsay is an element of the crime itself.
The Capitol Police Officers’ testimony certainly demonstrated that the rioters were acting as one, it was no a random gathering gone wrong. Someone planned it. Pence sensed it. So do we.
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