New evidence from the Jan. 6 committee shows Donald Trump spread lies about the 2020 election after aides and advisers told him he had lost. Dennis Aftergut is a former federal prosecutor who writes on national affairs. He has argued successfully in the Supreme Court and is currently of counsel to Lawyers Defending American Democracy. He wrote the below article for Verdict.
“Donald Trump is toe-to-toe with the law like he’s never been. On February 1, both Fani Willis, Fulton County’s elected district attorney, and the serious investigators for the House Select Committee probing January 6 punched back. Trump’s January 29 Texas rally speech had included trash-talking those who would hold him to account.
Trump labeled the prosecutors who are closing in on him in Atlanta and New York “racists” and called for “massive rallies” against them. I can say, as a former prosecutor who has been threatened, that will energize them.
Trump also admitted his support for the January 6 attack by offering, should he return to the White House, pardons to January 6 insurrectionists. They include 11 Oath Keepers now indicted for seditious conspiracy.
No one who remembers Paul Manafort, Roger Stone, and Steve Bannon’s convictions and pardon-dangles can doubt Trump’s message: “Don’t cooperate with them; I’ll have your back.”
In this fight, however, unlike the one with Special Counsel Robert Mueller, Trump doesn’t have the DOJ in his corner or William Barr as his corner man. And his opponents today learned some lessons from watching the special counsel fall short in 2019.
So the counter punches came quickly.
On February 1, Willis called in the FBI over Trump’s threat and formally acknowledged that he’s her investigation’s target.
On the same day, we learned that the select committee had received taped-back-together White House documents ripped up by Trump. That violates the Presidential Records Act. Prosecutors may use that offense to show consciousness of guilt.
The select committee also let it be known that it is focused on Trump’s role in a scheme to seize voting machines in multiple battleground states. The news of that lawless plot broke last week, part of the committee’s relentless torrent of disclosures.
It was humbling enough for Trump to lose his Supreme Court executive privilege case on January 19. But soon after the loss came the release to the committee of the White House documents, Trump’s trunks slipped further when the documents exposed a draft order authorizing the military to seize the voting machines, an order that he wanted to keep secret.
We’ve learned that in a December 16 White House meeting with then-President Trump, Michael Flynn, Sidney Powell, Mark Meadows, and White House Counsel Pat Cipollone, this lawless use of the military was discussed. Screaming was heard. Cipollone evidently ended the ploy by pronouncing loudly that the President “doesn’t have the authority to do this.”
Time for Plan B. Trump sent his water boy, lawyer Rudy Giuliani, on an errand to ask the Department of Homeland Security to seize the machines.
Rebuffed there by acting deputy Secretary of Homeland Security Ken Cuccinelli, Giuliani was next dispatched to execute Plan C – asking the DOJ to do the dirty deed. Attorney General Barr quickly shut Giuliani down.
Sounds like one-time mere sparring partners started returning hard blows. The former White House heavyweight looks a lot more vulnerable than he apparently needs the world to think he is.
Soon enough, the select committee’s evidence will be public and available to Willis and Merrick Garland’s Justice Department, if information is not being shared already. Willis has a special grand jury investigating Trump’s January 2, 2021, recorded phone call to Georgia Secretary of State Brad Raffensperger, in which Trump said he wanted Raffensperger to “find” 11,780 votes—the number he needed to steal Biden’s Georgia victory.
Soliciting election fraud is a crime in Georgia, and tapes are among the strongest evidence that prosecutors can produce.
Significantly, Willis is not limited to prosecuting Trump for interfering with Georgia’s election officials. A future indictment could combine the felonious phone call with another plot – the Trump campaign’s having solicited Georgia Republicans to submit bogus Republican electoral slates falsely claiming to Congress that the Trump electors on the fake certificates were “duly appointed.” The DOJ, too, is investigating that scheme, which signals an expansion of its probe beyond January 6 itself.
In a Georgia indictment, Willis could potentially bundle that plot and the Raffensperger call with other Trump overturn-the-election schemes, alleging a “criminal enterprise” that violated Georgia’s racketeering statute, which allows use of federal violations. A Georgia racketeering conviction is punishable by 5-20 years in prison.
Small wonder that a preoccupied Donald Trump might have dropped his guard in Texas, thinking he could afford a risk and invite prosecutors to take their best shot. Fani Willis has the evidence and the law for an Atlanta jury to make it a knockout.