Support The Bulwark and subscribe today.
  Join Now

We Don’t Need to Know Trump’s State of Mind on Jan. 6th

And there’s certainly enough evidence to indict him.
October 14, 2022
We Don’t Need to Know Trump’s State of Mind on Jan. 6th
WASHINGTON, DC - OCTOBER 13: Rep. Bennie Thompson (R) (D-MS), Chair of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, stands to depart during a break in a hearing at the Cannon House Office Building on October 13, 2022 in Washington, DC. The bipartisan committee, in possibly its final hearing, has been gathering evidence for almost a year related to the January 6 attack at the U.S. Capitol.  On January 6, 2021, supporters of former President Donald Trump attacked the U.S. Capitol Building during an attempt to disrupt a congressional vote to confirm the electoral college win for President Joe Biden. (Photo by Jabin Botsford-Pool/Getty Images)

Like an episode of a hit reality-TV series, yesterday’s hearing of the House January 6th Committee ended on a cliffhanger: The members voted unanimously to subpoena former President Donald J. Trump, signaling that their work is not finished. We don’t yet know whether Trump will testify truthfully or whether he will resort to one of his usual tactics—delay, obstruct, file suit, or lie. Of course, if the GOP wins control of the House of Representatives next month, the committee will disband and the subpoena issue will become moot. Thursday’s hearing was nonetheless significant for other reasons, including that it made good on Chairman Bennie Thompson’s promise at the outset to lay out the evidence of Trump’s state of mind.

State of mind—what criminal law calls “mens rea”—is often the difference between civil and criminal liability. Although it can be proven indirectly through circumstantial evidence, skeptics warn that without direct evidence displaying Trump’s corrupt intent to coordinate with the rioters in orchestrating the Jan. 6th carnage, an indictment would fall flat. This critique misses the mark on a number of fronts.

First, although numerous individuals have been indicted for seditious conspiracy, including the Oath Keepers’ founder and four associates, there is no mandate that Trump be charged with that crime. Seditious conspiracy requires that two or more people conspire—or agree—to “overthrow, put down or to destroy by force” the U.S. government. As Andrew Weissman, a senior prosecutor in the Mueller investigation, told NPR, in order to charge Trump with that crime, DOJ would have to identify “direct evidence that the president knew that violence would be used with respect to Congress, with respect to attacking the building.” The latest hearing was rife with information from the trove of 800,000 Secret Service documents the committee received since July showing, as Rep. Adam Schiff recounted, that the service knew ten days prior to Jan. 6th that the Proud Boys’s plan was to march armed into D.C. and literally kill people. And as of 11:23 a.m. on Jan. 6th, the service knew that numerous individuals with handguns and semi-automatic rifles had been identified near the Capitol, including someone in a tree with a pistol on his hip, yet the total number of firearms was “unknown.” Moreover, the committee emphasized that former Trump adviser Jason Miller sent Trump chief of staff Mark Meadows a text message attaching incendiary messages from the extremist site, with the note, “I got the base FIRED UP.” It beggars belief to suggest that Trump didn’t know what was happening before he “officially” learned that the mob had breached the Capitol barricade at 1:20 p.m. Even then, he did nothing about it for 2 hours and 40 minutes.

Second, there are crimes other than seditious conspiracy in play here. The crime of insurrection, 18 U.S.C. 2383, can yield ten years in prison for an individual who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” Recall that Cassidy Hutchinson, former aide to Meadows, testified that Trump wanted the metal detectors deactivated so the mob could proceed unhindered: “I don’t effing care that they have weapons,” she quoted Trump as saying. “They’re not here to hurt me. Take the effing mags away. Let my people in, they can march to the Capitol from here. Let the people in. Take the effing mags away.” But even that crime can go by the wayside if the goal is to charge him with something that will certainly stick.

The public evidence that Trump is liable for the lowest-hanging fruit—obstruction of an official proceeding—is virtually impossible to refute. That law, which is codified at 18 U.S.C. § 1505, requires only three things: (1) an official proceeding (check); (2) that Trump knew of the proceeding (check); and (3) that he intentionally endeavored corruptly to influence, obstruct, or impede it.

Can anyone seriously doubt that Trump wanted to stop the counting of the Electoral College votes on Jan. 6th so he could illegally stay in power? The committee took pains to walk through all the ways his team tried to do this; when one failed, he went on to the next, including insisting he won even though his top staff told him he didn’t; filing 62 bogus lawsuits without evidence of fraud (only one of which saw only mild success); flirting with firing DOJ’s top brass to install a loyalist who might use the massive power of that agency to help Trump strongarm his way into four more years; calling Georgia Secretary of State Brad Raffensperger to find 11,870 nonexistent votes; whipping up fake slates of electors in key states; pressuring Vice President Mike Pence to refuse to do his constitutional duty of gaveling in the duly elected president; tweet-calling the mob to the Capitol; promising on Jan. 6th to accompany the mob to the Capitol; doing nothing while the mob stormed the Capitol, threatening to murder Pence and House Speaker Nancy Pelosi, over numerous pleas by his aides and family members that he do something to call off the mob; and peddling lies about election fraud in the twenty months since then. This is a guy who wanted to stay in power at any cost. That fact is not open to serious debate at this point.

What’s more, the committee underscored that numerous people within Trump’s orbit—including former White House aide Alyssa Farah, Hutchinson, and Chairman of the Joint Chiefs of Staff Gen. Mark Milley—recounted Trump’s having expressly recognized that he lost. On November 11, 2020, he signed an executive order directing full troop withdrawal from Afghanistan and Somalia—which nobody followed, because as Milley said, it was “potentially dangerous” and “militarily not feasible.” The implication was that Trump reacted in anger or retaliation over losing the election.

Third, a federal judge has already ruled that Trump and attorney John Eastman, the author of the memos irresponsibly laying out how Pence could constitutionally justify stalling the vote-counting on Jan. 6th, conspired to defraud the United States under 18 U.S.C. § 371 and “dishonestly conspired to obstruct the joint session of Congress on Jan. 6, 2021.” A federal judge. Said this. Back in March.

“The illegality of the plan was obvious,” explained Judge David O. Carter of the Central District of California. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the vice president to singlehandedly determine the results of the 2020 election.”

Once and for all, it’s time that folks stopped hand-wringing over whether there’s a piece of the evidence puzzle glaringly missing when it comes to Trump’s culpability for Jan. 6th. There is not. The only question is whether DOJ should move forward with an indictment given that time is running out to indict, go to trial, and exhaust appeals before the next president is sworn in in 2025—and given the politics of a sitting president prosecuting a former president whom he may be running against in that election cycle. That’s a hard question. Whether there is evidence to indict Trump for Jan. 6th is not.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.