The events on January 6 and Trump’s impeachment
What did the mob intend to do when it got to the Capitol on January 6? What did Trump expect it to do? And does any of this even really matter for Trump’s impeachment?
GQ has interviewed Ariel Kovler, who has studied pro-Trump insurrectionist social media platforms since 2015. Kovler saw January 6 coming a long time ago.
His interview is a must read. 1/30
According to Kovler, the mob that stormed the Capitol was made up of Trump cultists who believed, not only that the election had been stolen, but also that Trump (whom they regard as infallible) had a plan to Stop the Steal on January 6. 2/30
Many of these cultists were flummoxed on Wednesday and are flummoxed to this day that there was no plan — at least that they could discern.
This helps explain the reaction of a hapless soul who posted this to 4Chan on Thursday: 3/30
OTOH, there were those who came armed to the teeth and who clearly did have an agenda for the event, whether they had gotten it from the event organizers or not. (Kovler is only surprised that there weren’t more of these.) 4/30
It is an interesting and important question whether the armed and highly organized armed militia types had decided to take out members of Congress and Pence even before the pre-March rally. 5/30
In any case, the militia types seem to have concluded (probably even before the pre-march rally) that Stop the Steal at least required either taking Pence hostage or assassinating him in order to keep him from certifying the Electoral College ballots. 6/30
(Hence the chants at the Capitol: “Pence is a traitor! “Get Pence!” and chants to hang Pence. A gallows was actually created for this.) 7/30
The militias who stormed the Capitol building will have to be interrogated before a full assessment can be made of Trump’s culpability in all of these events. (No doubt all of them will be arrested and interrogated eventually.) 8/30 tinyurl.com/y5usj5b2
Trump takes great pride in his ability to talk in the ambiguous, murky language of a Mafia don. This kind of speech sends sufficiently clear signals to stooges and underlings, but can be read the other way by defense attorneys in a court trial. 9/30
(A good example of this is his claim, which he continues to maintain, that his phone call with Zelensky was “perfect.” By “perfect” Trump clearly means something like: Roy Cohn would have been impressed with my performance.) 10/30
But if Trump knew, either directly or through Mark Meadows and others in the WH who were organizing the protest, or by Giuliani or anyone else, that armed militia types with the intention of using force to invade the Capitol and stop the electoral process were involved, 11/30
then that fact would certainly lead to Trump’s conviction eventually for incitement to insurrection and rioting.
Absent that evidence, though, it might be hard for prosecutors to get Trump convicted on a charge of incitement to rioting or insurrection. 12/30
Jonathan Turley has made a strong case that Trump’s pre-march speech at the rally on Wednesday would not support a legal charge of incitement.
However, Turley misses two essential points. 13/30
First, we don’t yet know what Trump knew about the organizers behind the events on Wednesday and their intentions and plans, as I have just argued. (In the law this is an essential part of the issue of mens rea.) 14/30
Even more importantly, Turley misses the fact that this question is not the essential one for deciding whether Trump committed an impeachable offense on January 6. 15/30
That he did act unlawfully and commit an impeachable offense is clear simply because we know that his plan was to get Congress and Pence to refuse to certify the election results. 16/30
That makes the whole effort by definition an attempted coup, because doing that was unlawful regardless of what Trump and his Republican enablers in Congress might have been expecting the mob to do when it got to the Capitol. 17/30
This point is so important that it behooves us to look at the law governing Congress’s certification of the Electoral College ballots in some detail.
The essentials are given by a POLITICO article that was published before the event on Tuesday. 18/30
The 1887 Electoral Count Act governs the procedures by which Congress counts electoral votes. The Act does not authorize the VP to unilaterally decide whether to introduce a state’s electors for a vote (as Trump claimed Pence had the authority to do). 19/30
As POLITICO notes, Congress has also adopted rules that bind itself to the Electoral Count Act’s requirements. These rules require lawmakers to count electoral votes that have been certified by the states. (These were submitted in December.) 20/30
A new law passed by Congress proposing to change these rules in order to give Pence himself the unilateral authority to refuse to recognize electors would almost certainly fail to pass Constitutional muster (for a number of different reasons). 21/30
In any case, Congressional Republicans who voted to deny certification must have known that they would not have the votes to make changes to the law. (It was never even proposed by them as a possibility.) 22/30
Some Republicans have defended their actions by saying that they only wanted a ten-day extension to verify that the election results were in fact valid. 23/30
This extension, they argued, was necessary and would be valid in order to remove the doubts of Republican voters, who believed that the election had been stolen.
This was both disingenuous and unavailing. 24/30
First of all, all the doubts about the election results had been sown by the Republicans themselves (especially Trump).
Second, the request was disingenuous because Trump’s demand that there be an extension had nothing to do with “clarifying” anything. 25/30
Trump had already said repeatedly that he (and everyone else) knew that the election had been stolen; and that it was only a matter of finding enough allegedly fraudulent votes to secure him a win in the Electoral College. 26/30
In other words, Trump didn’t want to “clear” the air: his intention was to overturn the election in his favor. The evidence for that is all over the place, and even Republicans like Marco Rubio have acknowledged it.
Finally, the controlling laws don’t allow for an extension. 27/30
All this means that what Trump expected the mob to do on January 6 at the Capitol building is in a way irrelevant to the question of whether he committed one or more impeachable offenses, 28/30
because the entire effort was an attempt to corrupt the electoral process and overturn the election results unlawfully, no matter how that was achieved at the Capitol. 29/30
Had it succeeded, the corruption of the January 6 electoral certification process would have amounted to a coup —
even if there hadn’t been a mob at the Capitol on January 6 at all. 30/30
