The Evidence Needed for a Trump Prosecution

It would be easier to prosecute Trump for January 6 than Peter Navarro. I say that (in advance of today’s debate about referring Navarro and Dan Scavino for contempt) because it is far easier to tie Trump’s actions directly to the successful obstruction of the vote certification on January 6 than it would Navarro’s, and Navarro’s actions are fairly tangential to the proof that Trump’s actions met the elements of obstruction of the vote certification.

Months ago, I laid out how to prosecute Trump using the framework that DOJ has already used with hundreds of January 6 defendants. But in this post, I will show how much evidence DOJ has already collected proving the case against Trump by using the framework for Trump’s criminal exposure laid out by Judges Amit Mehta and David Carter, incorporating a key point made by Judge Reggie Walton.

In his opinion upholding the lawsuits against Trump, Amit Mehta found that it was plausible Trump conspired with the militias and also that he bore aid-and-abet liability for assaults at the Capitol (see this post and this post). He found that:

  • Trump and the militias jointly pursued an effort to disrupt the vote certification
  • Trump planned the unpermitted march to the Capitol
  • Trump encouraged the use of force and threats to thwart the certification from proceeding
  • Trump knew supporters would respond to his calls to come to DC and march on the Capitol
  • Trump called for collective action
  • Trump intended his “fight like hell” comment to be taken literally and rioters did take it literally
  • Trump ratified the riot

In his opinion finding that one email from John Eastman must be turned over to the January 6 Committee on a crime-fraud exception (see this post), Carter laid out the following proof that Trump obstructed the vote certification:

  • Trump tried to persuade Pence to disrupt the vote certification
  • He publicly appealed to Pence to do so
  • He called on his followers to walk to Congress to pressure Pence and Congress

Carter laid out this evidence that Trump had corrupt intent:

  • Proof that he had been told the vote fraud claims were false and his own request of Brad Raffensperger showed he knew he had lost
  • Trump had been told the Eastman’s plan was not legal

Carter laid out this evidence he had entered into a conspiracy:

  • Trump held lots of meetings to talk about plans to obstruct the vote count
  • Trump ratified Eastman’s plan in his Ellipse speech

To those two frameworks finding that Trump probably conspired to obstruct the vote certification, Judge Walton held that you cannot point to back-room plotting to get to the intentions of the actual rioters; you can only look at what the rioters themselves accessed, Trump’s public speech and Tweets (see this post).

This table (which is still very much a work in progress) lays out what evidence would be needed to prosecute Trump. The horizontal Elements of 1512(c)(2)/Relevant to Motive and Co-Conspirators sections show what is necessary given the elements of the offense as laid out by the judges and in DOJ filings, versus what might provide evidence of a broader conspiracy. The Must Have/Nice to Have columns show that for each kind of proof, there’s what is necessary and what would be really useful before indicting a former President.

In other words, the things in the yellow boxes are the things that would be necessary to show that Trump obstructed the vote certification. They basically amount to proof that things that Trump did brought the rioters to DC and to the Capitol and that he had the corrupt mens rea to charge with obstruction. I include there proof that Trump conspired with the militias, which I consider necessary because the Proud Boys, especially, took the bodies that Trump sent them and made those bodies tactically effective.

While prosecutors are still working on tying Roger Stone to both militias and tying Alex Jones and Ali Alexander into the crimes at the Capitol, much of the rest of this evidence has already been collected and rolled out in charging papers. For example, I showed some of the proof that rioters responded to Trump’s attacks on Pence by targeting their own attacks on Pence. There are a number of Trump comments that directly led hundreds of rioters to start making plans to come to DC, including arming themselves; NYT recently laid out the most central communication, a Tweet on December 19, 2020, though not only is that focus not new, it’s the tweet and response to which Arieh Kovler predicted the attack on the Capitol in real time.

A number of the other things you’d want to have before you charged Trump are available to DOJ:

  • Details of how the march to the Capitol happened and why it — and Ali Alexander’s permitted rallies at the Capitol — made a riot more likely
  • Explanations why Ellipse rally organizers balked at including people like Ali Alexander and Roger Stone
  • Testimony from Pence’s aides about how Trump pressured his Vice President in private

It is true that the testimony of several people — those involved in selling the Big Lie and Scavino’s coordination of the riot (including a particular focus on The Donald) — would be really useful. But that testimony is as important to proving that they were part of the conspiracy along with Trump.

Pat Cipollone’s tesitmony would be incredibly useful to that case, too. Normally, he could invoke privilege, but Trump already waived some of that privilege by sharing details about his conversations with Cipollone with Sean Hannity. If Cipollone did cooperate with DOJ, I don’t think he would leak that.

Similarly, the Relevant to Motive and Co-Conspirators rows — showing Trump’s coordination with Congress or his prior planning of it — would be really useful to have in prosecuting Trump. But ultimately, as Judge Walton held, what Trump did in private could not have influenced most of the rioters, because they never knew those details. As such, some of that information — precisely the kinds of stuff that TV lawyers say would be the first overt signs that Trump was a subject of the investigation — is more useful for including others in the conspiracy.

The most important of this evidence — communications from the December 18 meeting and comms during the day of the riot — are already in DOJ’s possession from Rudy’s seized phones, whether or not they obtained a warrant for that content yet.

Update: I’ve tweaked the horizontal headings on the table to clarify that the top half of the table stems from the elements of offense for 1512(c)(2), whereas the bottom half is clearly related and may help prove mens rea or incorporate other co-conspirators, but is not necessary (in my opinion) to meeting the elements of obstruction.

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68 replies
  1. John Forde says:

    Marcy in a previous post you had said that one of beauties of prosecuting TFG for ConFraudUS is that after others had been convicted TFG could be dropped into the same legal structure without much need for testimony of his co-conspirators.
    This is incredibly helpful in explaining to people why so little is seen from Garland. The result is worth the wait.

  2. Badger Robert says:

    Well done. So Garland may be working on the premise that when you aim at the emperor, you better not miss. It could be he’s building a case with no escape. And international events may give AG Garland an even stronger hand.

    • Bobby Gladd says:

      Given that we have never had a former president charged with a felony (IIRC?), the upshot concerns are necessarily conjectural, are they not? That is, going after a prior president and then not getting a conviction could have a range of serious political consequences. A plausible concern, I guess. Does this mean we have to have a higher threshold than the customary “beyond a reasonable doubt“ standard? Where we have come to of late in the interpretation of the word “reasonable“ is not reassuring.

      See e.g., Sperber & Mercier, “Why do Humans Reason?” Well, to WIN the argument. If truth happens along the way, so much the better.

      In Trump‘s case, were he to be charged and then found not guilty, yeah, we’d never hear the end of it. But, where he convicted, we’d never hear the end of THAT either: “it was all fake, it was all ‘trumped’ up, politically motivated …” Motivated “reasoning.” Buttressed by MAGA violence?

  3. Joe Sommer says:

    Trump’s obstructive actions are largely public. The key evidentiary issue, I think, goes to Trump’s state of mind. The prosecution must prove this state of mind beyond a reasonable doubt, as it must with all elements of its case. This is where white-collar prosecutions often fail.

    • john paul jones says:

      By “public” do you mean words and actions open to being seen and heard by everyone (speech at the Ellipse), or words and actions which have since become public (call to Raffensberger)? I don’t mean to be needlessly picky, but there was much in the former category which, at the time, seemed outrageous – but still normatively Trumpy – rather than obviously illegal; and it’s really the latter category which might be used as evidence in an obstruction prosecution. It’s the latter also which, per Judge Carter, provides evidence of mens rea:

      “Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under 1512(c). President Trump and Dr. Eastman justified the plan with allegations of election fraud – but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful. … President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election: “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” Taken together, this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.”

      Carter’s summary is longer than this brief excerpt, and to my mind, thoroughly convincing (supposing I were on a jury, looking at said evidence).

      • Badger Robert says:

        The public statements and emails, per Ms Wheeler, will be the evidence of conspiracy. Per the post above, the more private actions will be evidence of the state of mind.
        The problem is not with evidence, but in manufacturing and maintaining an incorruptible jury.

        • rdpayne says:

          But if his private communications were distributed to influential people and subsequently they encouraged the insurrection, could that be used in court in any way?

    • AlexanderP says:

      This framework represents MW’s understanding of the strategy Merrick Garland has been pursuing for two years now. It makes no sense to hope he’s reading it here.

    • massappeal says:

      Well, sure…but with everything laid out in the post above, isn’t it more that the legal cases and the DOJ’s “theory of the case” that Garland is overseeing are being put together so as to construct the basis for indicting and prosecuting Trump (assuming all the evidence necessary can be proven in court)?

      • bmaz says:

        No, that is not right. There are a LOT of considerations. By my eye, the smart money is still on no indictment of Trump.

        • Desider says:

          Could you lay out how you see those considerations? Good to balance possible scenarios rather than go all in for a relatively optimistic projection and then wonder what happened later.

          • bmaz says:

            No, but there are a lot. Evidence is not always quite as admissible as people commonly think. It may be rebuttable in ways we do not currently see. DOJ charging guidelines contemplate a likely conviction; for a variety of reasons, I am not sure that exists here given the proverbial hung jury. Many more. Have tried to relate to all the people claiming “slam dunk”, that is also laughable.

            • Zirc says:

              “Proverbial hung jury.” So DoJ will probably/most likely consider whether there is a diehard Trumpie or two in a random selection of 12 jurors? A not unlikely scenario, even in DC. Ouch.

              Zirc

              • bmaz says:

                Of course they will. They game it out via staffing meetings, and, no, Garland would be unlikely to be active in that (though he might), but would certainly get the report.

                • Desider says:

                  Tho 1 conviction on a serious charge that’s upheld on appeal should be enough to end his career, even if he doesn’t see jail. Laying out perhaps the lowest acceptable outcome. (Yes, we have to accept it anyway if it comes out worse – sometimes you don’t even get what you need.)

                  • bmaz says:

                    We shall see. But I truly think people are off their rockers about how this could or would work out.

                    Marcy has been incredible in laying the potentials out. But it is not only perceived facts. Getting to a conviction is far more than that. Without formal charges and evidentiary admissions it is beyond unclear.

                    • PieIsDamnGood says:

                      Nobody is coming to save us. Mueller, Avenatti, Cuomo, or Garland are not going to clean up the mess that our political system created.

                      Republicans need to lose the next 2-3 presidential elections if they’re going to change course.

                    • bmaz says:

                      When Garland first got nominated, was easy to hear the cries. A few of which have been validated…maybe. I always thought it most important to depolitify the DOJ. He and Biden have mostly done that.

                      Sad to see people again intent on that, even with a Dem as AG.

              • Tom R. says:

                To answer Zirc’s question:

                1) It should be possible to weed out the worst dead-enders during voir dire. Remember that Manafort, Stone, and other highly political cases have resulted in convictions.

                2) In this case: Yes, DoJ will consider the chance of getting a diehard or two in a random selection of 12 jurors. They’re not supposed to, but they will.

                Here’s what they’re supposed to do, according to section 9-27.220 of the Justice Manual:

                The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

                The next couple of paragraphs emphasize that this is based on “an unbiased trier of fact”, so jury nullification does not count.

                For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt—viewed objectively by an unbiased factfinder—would be sufficient to obtain and sustain a conviction, yet the prosecutor might reasonably doubt, based on the circumstances, that the jury would convict.

                Juror odds are emphatically not supposed to be a reason for declining prosecution. Civil rights issues are the poster child for this, and not always in the political left/right direction you might expect. In June of 2019, Scott Warren was tried for allegedly aiding migrants in the Arizona desert. The jury was hung with only 4 votes for conviction … whereupon DoJ retried the case! Let’s suppose jurors are selected randomly and independently. The first trial suggests roughly 1 out of every 3 is persuadable. Then binomial statistics says DoJ had less than one chance in half a million of getting a conviction in the second trial. Even so, they went ahead with it. The result was a complete acquittal.

                3) It is in the nature of bureaucrats to protect the bureaucracy. No matter what the Justice Manual says, DoJ will avoid doing anything that will injure DoJ. Retrying Scott Walker did not endanger DoJ. In contrast, James Comey still thinks it was noble of him to break the rules in ways that hurt the Hillary campaign but protected the FBI. The idea that he had a higher duty to protect America, to protect democracy — that still has not dawned on him.

                4) As for Federal interest, the downside of prosecuting this case is quite substantial … but the downside of not prosecuting is incomparably worse.

                https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution

                • Leoghann says:

                  Speaking of “non-criminal alternative[s] to prosecution,” I personally believe that’s where we’re headed with Trump. At the rate he’s declining, within a couple of years, he will be (in my grandfather’s words) “as senile as a duck.” He probably won’t last very long, and even if he does, he will only be a threat via his most rabid followers, some of whom won’t last long either.

        • BobCon says:

          How much of that is based on current evidence vs. the probablities of more to come?

          Based on what we know, I’m aware of how hard to convict it would be, and DOJ may factor in right wing Supreme Court interference when deciding whether to pursue a case.

          I’m less clear on what the scope of evidence may be out there that we’re still in the dark about, though. I definitely don’t want to base any educated guesses on things like handwaving assumptions about the power of the FBI to intercept emails and the inevitability of conspirators to screw up. But I’m curious if there are some significant areas of unknowns outstanding which have decent prospects of causing problems for Trump and/or his major conspirators.

          • bmaz says:

            Who knows, and who cares? Time will tell. But people clamoring for instant action because it fits their little political concerns are bonkers. It is not just you, even doing this for a living, I have no idea what evidence set might actually be admitted into evidence. Nobody does. And acting like it is a given is fools gold.

            • Troutwaxer says:

              I don’t know a thing about he DOJ, at least compared to you, but I’d bet a fairly large sum of money that the decision hasn’t been made yet and won’t be made until they see how much headway they make prosecuting people like Eastman or Stone.

  4. BobCon says:

    This is a very helpful framework.

    “It is true that the testimony of several people — those involved in selling the Big Lie and Scavino’s coordination of the riot (including a particular focus on The Donald) — would be really useful. But that testimony is as important to proving that they were part of the conspiracy along with Trump.”

    From a public communication standpoint it would be interesting to see a list of high level people who are potentially at legal risk for being conspirators with Trump, and how much evidence is already there as well or still needs to be developed.

    Unfortunately a lot of media whining about charges and Trump are equally clueless about the exposure of conspirators and the value of charging them. I think there are a lot of reasons why they want to look away or misunderstand how the conspiracy worked.

  5. greenbird says:

    woke-me-up table!
    would the previous one on conspiracy groups need updating, or am i just nerdy.
    thank you, doc – strong way to start the week.

  6. earlofhuntingdon says:

    “[Y]ou cannot point to back-room plotting to get to the intentions of the actual rioters,”

    where you cannot show that an individual rioter was in communication and/or conspiring with such plotters. The conduct of rioters and backroom plotters might be crimes, but you have to directly tie the two together. Otherwise, you have to prosecute them separately.

    • emptywheel says:

      But if and when you prove that the conspirators at the Capitol were tied to the back-room, then it is FAR easier to prove that the back-room stuff is a crime.

      I’ve come around that John Eastman may have committed a crime of his own accord, but I’m not sure you get there with Navarro without the successful obstruction of the vote count.

      • Scott Johnson says:

        I suspect that if and when Trump does get indicted… his defense will be that everything he did is either protected by the First Amendment generally, being speech of a political nature, or that it constitutes a lawful exercise of his powers as President. So proving corrupt intent–that he either intended to abuse those powers, or chose to exercise them for a corrupt reason–will be key.

        In this way, Trump has one disadvantage over the Roger Stone’s of the world: as POTUS, he not only holds legal powers and authorities, but also is bound by duties and responsibilities that don’t apply to civilians. With great power comes great responsibility; and only those who hold high office can be found to have committed high crimes. (That’s what a “high crime” is, after all–a betrayal of the public trust bestowed on public officials).

        The fact that many officials in the Trump Administration advised Trump that his desired course of action is illegal, is key–it makes a “didn’t know it was wrong” defense harder to mount. It’s pretty much settled, I think, that if one lawyer advises you that something is illegal, you can’t go shopping around to find one that will bless your plans, and then claim advise of counsel as a defense

        • P J Evans says:

          Trying to change the results of an election, especially after the votes are certified, is *not* part of his duties as president.

          • bmaz says:

            You think a defense lawyer cannot make out that argument, when all he/she has to do is convince one juror? Don’t kid yourself. Actual jury trial courts are different than the internet.

            • Desider says:

              Trump has maintained 4/10 support & approval throughout his presidency and after. A random jury is likely to have similar sympathies,. even tho case specifics might lower that admiration if certain charges presented well. But unanimous is a tough hurdle.

  7. Peterr says:

    I think the 7.5 hour gap in the WH phone logs likely goes to mens rea. From the Guardian last week, with emphasis added:

    Donald Trump used an official White House phone to place at least one call during the Capitol attack on January 6 last year that should have been reflected in the internal presidential call log from that day but was not, according to two sources familiar with the matter.

    The former president called the phone of a Republican senator, Mike Lee, with a number recorded as 202-395-0000, a placeholder number that shows up when a call is incoming from a number of White House department phones, the sources said.

    The number corresponds to an official White House phone and the call was placed by Donald Trump himself, which means the call should have been recorded in the internal presidential call log that was turned over to the House select committee investigating the Capitol attack.

    Trump’s call to Lee was reported at the time, as well as its omission from the call log, by the Washington Post and CBS. But the origin of the call as coming from an official White House phone, which has not been previously reported, raises the prospect of tampering or deletion by Trump White House officials.

    You don’t tamper with phone logs like this unless you are trying to hide something, because I would think that this is both evidence tampering as well as destruction of presidential records.

    Somewhere there is a (former?) mid-level WH staffer who was ordered to delete these records. I want to know who gave that order, and when they gave it.

  8. joel fisher says:

    Perhaps some of the frustration of the “why-isn’t-he-in-custody” crowd stems from the fact that it is never clear with TFG whether he is the top of the conspiracy pyramid or simply another brick in the wall. I don’t think being the beneficiary of a conspiracy prevents a participant from consequences. Seems pretty clear he’s one or the other. As alluded to above and notwithstanding the “no documents were destroyed in the making of this insurrection” argument, public facts indicate at the very least TFG is chargeable as a participant in the conspiracy to obstruct.

  9. hollywood says:

    It seems that currently a lot of folks are case hardened. They either believe that TFG belongs behind bars now, or they believe the big lie and all that goes with it. Still, there seems to be a large segment of the populace who are ignoring this entire controversy. I am curious to see how they react if TFG is actually indicted and forced to put on his defense.

  10. Randy says:

    “When Garland first got nominated, was easy to hear5 the cries. A few of which have been validated…maybe. I always thought it most important to depolitify the DOJ. He and Biden have mostly done that.
    Sad to see people again intent on that, even with a Dem as AG.”

    Yep, back under Obama, when no one under Bush was prosecuted for torture, because Obama wanted to “look forward” and no major Wall Street players were prosecuted for their roles in the 2008 crash, causing even sitting Clinton appointee U.S. District Court Judge Rakoff, to label it “egregious failure” to prosecute– that was one “no one is above the law,” apolitical DOJ.

    [Welcome back to emptywheel. Please use use the same name each time you comment so as to differentiate yourself from other commenters named “Randy.” You have commented three previous times as “Randy Baker.” Thanks. /~Rayne]

    • bmaz says:

      Yeah? Seriously? So, what you advocate is politicizing the DOJ to fit “your” timelines and POLITICAL thoughts. Swell.Thanks for your input.

      • Randy says:

        Following Ghandi’s lead about the value of “Western Civilization,” I think a depoliticized DOJ would be a good idea — not something we have seen, at least not since I finished law school in 1984.

        [Welcome back to emptywheel. SECOND REQUEST: Please use use the same name each time you comment so as to differentiate yourself from other commenters named “Randy.” You have commented three previous times as “Randy Baker”; let me be more clear that you need to revert to that name because there are multiple community members named “Randy,” “Randal,” or “Randall.” Thanks. /~Rayne]

  11. Michael K says:

    Aren’t the missing White House phone records additional evidence of corrupt intent?

    Also, if we accept the above, how long is it reasonable for DOJ to wait for “Nice to Have’s” before indicting? If TFG campaigns in New Hampshire and Iowa in 2023, at what point do DOJ’s “election year sensitivity” policies get in the way of a potential prosecution?

    • blueedredcounty says:

      From the article, “… and boy has it been the kind of bumpy ride usually reserved for either incompetent business disasters or complete scams.”

      Made me think of Shimmer Floor Wax on SNL. I can’t stop chuckling to myself.

  12. MAJ Granddad Esq. (Ret) says:

    I have read very little regarding the importance or relevance of the J6 morning seemingly diversionary attacks at the Washington Monument and Lincoln Memorial. (The Hill has a less than enlightening article dated 31 Sep 21.) I assume DOJ has good visibility on that, including the Hill-mentioned arrest of an armed man in a tree. I am also curious about what came of the protesters shown in a picture shown soon after J6 down on the Capitol floor with blackclad SWAT team holding rifles on them. Not identified or searched or ultimately arrested?

  13. Bay State Librul says:

    Believe you me, we need a Philadelphia Lawyer to get inside Trump’s head.

    If Biden is re-elected, Jamie Raskin should be the next Attorney General.

    He is not from Philadelphia, the home of “very able, clever, unscrupulous, manipulative, and intelligent lawyers.”

    I’ll take a Rep from Maryland, who doesn’t mince any words. “There was an attempt at an inside coup, what the political scientists call a self-coup,” he said. “Not a coup against a president, but a coup that is orchestrated by the president against the constitutional system.”

  14. Bay State Librul says:

    Believe you me, we need a Philadelphia Lawyer to get inside Trump’s head.

    If Biden is re-elected, Jamie Raskin should be the next Attorney General.

    He is not from Philadelphia, the home of “very able, clever, unscrupulous, manipulative, and intelligent lawyers.”

    I’ll take a Rep from Maryland, who doesn’t mince any words. “There was an attempt at an inside coup, what the political scientists call a self-coup,” he said. “Not a coup against a president, but a coup that is orchestrated by the president against the constitutional system.”

  15. Vinnie Gambone says:

    “Provided knowingly false claims to motivate rioters.”
    This gets close to statements involving “Normies”.

    Somewhere between inciting the Normies and executing the greenbay sweep somewhere in the planning of both, one set of actors surely talked with the other set(s). If Trump knew the timing of the plan, if he knew that his speech was the lighting of the fuse- that would be bingo, right?
    I still can’t figure out why DOJ or J6 can’t interview the people who were almost always in the room- the Secret Service agents.

  16. Silly but True says:

    A new interesting Jan. 6 precedent just occurred. We just had first Jan. 6 defendant acquitted on all Jan. 6 charges: Matthew Martin.

    He was acquitted by Judge McFaddon, which is commentary all into its own. But regardless, the judge determined video evidence suggests he was a bona fide “Jan. 6 Capitol tourist” — in that he’s on video strolling by police to enter, he didn’t parade.

    As prosecutors are using some of the conviction precedents to bolster later cases, you can bet some defendants will try Martin’s strategy; provided they have the video to prove it.

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