Trump’s Lawlessness Has Brought Us to the Brink of a Constitutional Precipice

There are no good options to hold Trump accountable, but prosecuting him is the least bad choice if the January 6 Committee’s findings pan out

Rioters storming the Capitol on Jan. 6, 2020. Creative Commons, Tyler Merbler.

The revelations from the hearings of the House Select Committee to Investigate the January 6th Attack on the United States Capitol have generated precisely the kind of political crisis that Never Trumpers like myself feared when Donald J. Trump first walked into the White House. The committee has unfolded discrete evidence that Trump and his enablers came very close to ending a 224-year-old tradition of peaceful transitions of presidential power. Regardless of whether the Department of Justice indicts Trump for his outrageous behavior, the country is now vulnerable to risks that were scarcely imaginable before his presidency.

‘I don’t f-ing care that they have weapons’

Testifying before the committee on June 28, Cassidy Hutchinson, the 26-year-old former assistant to White House chief of staff Mark Meadows, delivered the most damning testimony against the conduct of Trump and his White House operatives. She described in stunning detail Trump’s desire to join the mob as it headed to the Capitol to stop the constitutionally mandated counting of electoral votes. Trump knew that this mob was armed, because by midmorning on that fateful day, the Secret Service and law enforcement had already detected—and in several cases, seized—guns, knives, body armor, brass knuckles and spears belonging to “Stop the Steal” rally attendees. But Trump was unfazed. “I overheard the president say something to the effect of, ‘You know, I don’t f-ing care that they have weapons. They’re not here to hurt me,” she testified. The president went so far as to urge the Secret Service to remove metal detectors to allow more people into the area near the stage where he was about to speak. Trump’s stated concern was that video of the rally show the largest possible crowd, or as he later described it: “the biggest crowd I’ve ever—and I’ve spoken before the biggest crowds—the biggest crowd I’ve ever spoken [to] by far, by numerous times I think.” 

After telling the armed crowd to “fight like hell” and promising that he would march with them, Trump was furious, Hutchison testified, when the head of his Secret Service detail informed him that the presidential SUV was instead heading back to the West Wing. Though Hutchison didn’t witness the president’s conduct, her testimony wasn’t ordinary hearsay; she was recounting, under oath, what she said deputy chief of staff Tony Ornato had told her of Trump’s frustration as it was told to him by the head of the president’s Secret Service detail, Robert Engel, who was himself in the room listening to Ornato’s account. “The president said something,” she testified, “to the effect of, ‘I’m the f-ing president. Take me up to the Capitol now,’ to which Bobby Engel responded, ‘Sir, we have to go back to the West Wing.’”

The Secret Service is reportedly disputing Hutchinson’s account of the president’s physical attack on Engel, but no one is disputing the crucial detail that Trump intended to accompany an armed mob to the Capitol. This strengthens the evidence that Trump intended to incite violence, and it should help overcome Department of Justice concerns that Trump’s exhorting his supporters to “fight like hell” would be seen in court as protected speech under the First Amendment.

‘Hang Mike Pence’

Much of the testimony in the committee’s earlier hearings focused on the violent attempt to take over the Capitol to stop the counting of electoral votes. Dramatic footage has shown MAGA supporters beating police officers and hunting for House Speaker Nancy Pelosi and Vice President Mike Pence. Many rioters made no secret of what they would do with Pence if they found him, shouting “hang Mike Pence” and erecting a makeshift gallows, with noose attached, on the West steps of the Capitol.

Hutchinson previously testified that Meadows, her boss, told her that Trump was sympathetic to those who wanted to hang his vice president. This reinforces what Trump himself confessed during a March interview with ABC News’ Jonathan Karl. In the audio that Karl released, the former president said that those shouting to hang Pence wanted to do so “because it’s common sense.” In fact, he insisted, “If you know a vote is fraudulent, right? — how can you pass on a fraudulent vote to Congress? How can you do that?”

‘Just Say the Election Was Corrupt’

Hutchinson’s shocking testimony isn’t the only evidence that the committee has unearthed that Trump and his allies were attempting a coup to prevent Joe Biden from assuming office.

On June 23, in two and a half hours of riveting testimony, former Acting Attorney General Jeffrey Rosen, former Acting Deputy Attorney General Richard Donoghue, and former Assistant Attorney General for the Office of Legal Counsel Steven Engel narrated the events that took place from December to the days immediately preceding the Capitol assault. Donoghue testified that Trump asked him and Rosen, Donoghue’s boss, to “just say the election was corrupt and leave the rest to me and Republican congressmen”; gullible state legislators would then fall in line.

If Rosen wouldn’t do this, according to evidence presented to the panel, Trump intended to fire Rosen and replace him with Jeffrey Clark, a Justice Department environmental lawyer. Clark had already drafted a letter to Georgia officials saying, “The Department recommends that the Georgia General Assembly should convene in special session so that its legislators are in a position to take additional testimony, receive new evidence, and deliberate on the matter consistent with its duties under the U.S. Constitution.” Only the threat that virtually every Trump appointee at the Justice Department would resign in protest if Trump replaced Rosen with Clark dissuaded Trump from doing so.

Rosen, incidentally, became acting attorney general when Attorney General Bill Barr stepped down after confirming publicly that there had been no widespread voter fraud in the 2020 election. Trump was, of course, enraged, throwing a temper tantrum in his private dining room off the Oval Office.

Bullying State Officials

But Barr’s disavowal of a stolen election didn’t stop Trump from pushing the Department of Justice, the Department of Defense and the Department of Homeland Security to continue tracking down each and every cockamamie theory about rigged voting machines, satellites switching votes from Trump to Biden, or suitcases of fraudulent ballots being pulled from under tables and run multiple times through voting machines. This last falsehood led MAGA mobs to threaten Georgia election workers whom Trump went so far as to name. Indeed, the committee’s most heart-rending testimony came on June 21 from Wandrea “Shaye” Moss and her mother, “Lady Ruby” Freeman, who described what it was like to have the president of the United States target them. They endured months of threats and harassment that have made them virtual prisoners in their own homes.

The committee also heard testimony from state election officials and legislators whom Trump contacted to try to overturn the election. Georgia Secretary of State Brad Raffensperger testified that the president in his Jan. 2, 2021, phone call exhorted him to find him 11,780 votes to reverse his loss in the state. Arizona House Speaker Russell Bowers, a staunch conservative Republican, testified at the same hearing that the president tried to get him to force the state legislature back into session to decertify Joe Biden as the winner in his state. But neither Trump, nor his personal attorney Rudy Giuliani, nor anyone else could produce any actual evidence of fraud or illegal votes.

Obstructing the Transition of Power

When Trump couldn’t get state officials to act, he tried to get the Justice Department to overturn the election. Trump, never one to understand the mechanics of government, didn’t come up with this scheme on his own; he was aided by Justice Department officials and members of Congress. The plot was complex. John Eastman, the notorious constitutional law professor, had already presented memos to Trump and his lawyers proclaiming the right of Vice President Pence on Jan. 6 to discount supposedly tainted ballots from battleground states that Trump lost by turning the matter back to state legislatures—mostly in states where Republicans held the majority—to pick new electors. But the only way Trump and company could persuade those state legislators to reverse the certified results of the election was to convince them that voting fraud had been so egregious that the results couldn’t possibly be accurate. It didn’t seem to matter to Trump or his legal advisers—Rudy Giuliani, John Eastman, Sidney Powell, and Jenna Ellis among others—that 61 court cases making the same allegations had been rejected by judges appointed by Republicans as well as Democrats, including at least eight appointed by Trump.

What We Already Know—and the Hard Choices Ahead

The committee will continue its hearings into July, but here’s what we already know for a fact about Trump’s scheme to prevent Biden, the lawfully elected president, from assuming office: Before Jan. 6, Trump tried to convince state officials to nullify Biden’s victory and hand the election to him; strong-armed executive agencies to investigate unfounded and outlandish theories of election fraud; demanded that his Justice Department participate in his lie that the election was illicit; and applied enormous pressure on Mike Pence to renege on the vice president’s constitutional duty to facilitate the counting of the electoral votes. When all that failed, on Jan. 6 he delivered an incendiary speech on the Ellipse exhorting his supporters to “fight like hell” to prevent Biden from being seated; refused to disarm them; berated the Secret Service when it refused to go along with his plans to take him to the Capitol to lead the mob; and rejected pleas by his family, friends and staff to intervene to disperse the mob as it descended on the Capitol building chanting, “Hang Mike Pence.”

Trump took an oath to defend the Constitution of the United States, which includes ensuring a peaceful transition of power. He did the opposite. His attempted coup upended the lives of patriotic election workers and led to grievous injury, even death. We survived this coup, but if he pays no price for his actions and he faces no criminal charges, it will send the message that the chief law enforcement officer of the land is himself above the law. This will only encourage similar attempts in the future.

However, if the country does indict a former president, it will set a fraught precedent. Trump might richly deserve to be put on trial, but it opens the door to future prosecutions of former presidents on far more frivolous grounds, especially given our polarized times.

That’s not the only danger of going after Trump. If he is acquitted by a jury of his peers, the outcome will enrage millions of Americans. If, however, he is convicted, a long and bruising legal battle will ensue to reverse the conviction, going all the way to the Supreme Court, which will only lose credibility if it vacates a guilty verdict based on votes from the court’s conservative justices, three of whom were appointed by Trump himself. A conviction might also inspire violence that would make Jan. 6 pale by comparison.

Still, all in all, it would send the wrong message to do nothing or to go after only Trump’s enablers, such as the false electors that the Trump scheme created or scheme ringleaders like Giuliani, Eastman and Meadows (all of whom reportedly sought preemptive pardons from Trump). If ours is truly a nation of laws not men, even the president of the United States must face justice.

Trump’s actions are testing the country’s bedrock commitments to a breaking point. That’s why so many of us feared for the country’s future when he was elected.

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