Wednesday, June 29, 2022

How Hutchinson Converted Skeptics To Thinking Trump Might Be Prosecuted After All

How Hutchinson Converted Skeptics To Thinking Trump Might Be Prosecuted After All



Former President Trump's speech at the Ellipse was many things — low-class, loaded with conspiracy theories, reckless.

See Also:  Former aide Cassidy Hutchinson testifies on Jan. 6 warnings, pardon requests, and Trump trying to grab the wheel

But to many legal elites, it fell short of incitement.

See Also:  CNN's Don Lemon defends questioning Karine Jean-Pierre about Biden's mental fitness: 'It's our job'

But after the Jan. 6 Committee hearings — and, specifically, after Cassidy Hutchinson's testimony on Tuesday — that view may be starting to change.

See Also:  MSNBC panel wonders if Ginni Thomas should be 'perp-walked' by Jan. 6 Committee

Multiple legal commentators and former DOJ officials who had publicly stated, before Tuesday, that Trump's activities did not meet the exacting legal standard for incitement have now changed their views.

See Also:  Joy Behar says 'The View' changed when Trump got elected: 'We used to have more laughs'

"There's no question about intent. There are enough pieces of evidence about what Trump did that made this more likely than not," said Alan Rozenshtein, an associate professor at University of Minnesota Law and former attorney-adviser in the DOJ's National Security Division. "He tried to get the magnetometers removed, tried to get them to march on the Capitol."

See Also:  Boris Johnson rebukes CNN talking point that American democracy is dying: 'Grossly exaggerated'

The testimony paints the picture, he said, of knowing wrongdoing by the former president.

See Also:  U.S. Secretary of State Antony Blinken says Putin has 'already failed' in strategic objective to end Ukraine's independence

It marks a shift for Rozenshtein, mirrored by other legal observers across the political spectrum.

See Also:  Rep. Alexandria Ocasio-Cortez dodges on whether she'll support Biden in 2024, focuses on midterms: 'That's not a yes'

Before Hutchinson's testimony, Trump's remarks were viewed by many as reckless, but fundamentally within the realm of political speech, evading the standard for incitement. It was, commentators argued, definitely within the boundaries granted to politicians, who frequently urge supporters to "fight" for political action.

See Also:  NBC Washington Correspondent Yamiche Alcindor and former U.S. Attorney Barbara McQuade join Andrea Mitchell to discuss key challenges facing the January 6 Committee ahead of their primetime hearings this week: getting a "distracted nation" to pay attention and understand what's at stake. "I think the biggest challenge for lawmakers here, as they talk about these sort of huge ideas of American democracy and sort of the experiment that we're all living in, benefiting from, possibly being brought to his knees, is whether or not they can make people care," says Alcindor. "The American public has been groomed to expect high value quick entertainment," says McQuade. "I think putting together a polished show can be very important." 

In January, Rozenshtein argued to TPM that Trump's action's on Jan. 6 didn't meet the bar in part for that reason — they qualified as political speech — even as he took to "alleging a massive conspiracy and fraud on the American public."

ee Also:  Joy Behar said on "The View" on Monday that inflation and high gas prices were a "worldwide problem" and largely blamed the baby formula shortage on Republicans.

"It's a lie, but to me it's campaign rhetoric; that's him going to the American people, and it's what we'd want him to do if the Constitution really were under attack," Rozenshtein said.

See Also:  Here's the Story with Kyrsten Sinema

But Hutchinson added a few sentences which, for Rozenshtein, changed that calculus.

See Also:  Sara Haines asked Sen. Chris Murphy if the Republican Party is going further right during Tuesday's episode of "The View."

"Take the f-ing mags away. They're not here to hurt me. Let them in. Let my people in. They can march to the Capitol after the rally is over," Hutchinson recalled Trump saying.

See Also:  Joy Reid accuses Republicans of thriving on 'demographic panic,' says GOP wants no one to feel 'safe'

It's not that Hutchinson's testimony was itself a smoking gun. But it emerged after weeks of hearing which describe a coordinated, premeditated campaign to overturn the election result which culminated in an explosion of violence on Jan. 6.

See Also:  "The View" co-host Joy Behar said Wednesday that gun laws would change "once Black people get guns in this country."

Her testimony in conjunction with the other hearings have changed the views of other legal commentators across the political spectrum. David French, the notable conservative attorney and never-Trumper, wrote a column arguing that Hutchinson's testimony provided persuasive evidence that Trump met the legal standard for incitement provided by the Supreme Court in the Brandenburg case: that of stoking "imminent lawless action."

See Also: Ana Navarro loses it during CNN gun control panel: 'Get your a--es in gear and call your Senators!'

"He is trying to bring in not just the guns, but the people with the guns, into the mob," left-leaning Fordham Law Professor Shugerman told TPM. "It's not a slam-dunk case yet, but up until yesterday, most of what we had was political speech."

See Also:  Phim Tống Từ - Nhân Chứng 

The difference for Shugerman, too, came with Trump's alleged "take the f-ing mags away" remark.

See Also:  Phim Tống Từ - Bức Màn Bí Mật

"Those three sentences give you mens rea," he added — the legal term for when a person has knowledge that they're doing something that violates the law.

See Also:  Phim Bao Thanh Thiên

Even Andrew McCarthy of the National Review, typically more interested in condemning those investigating Trump, conceded that Hutchinson's testimony pointed to the former President being "culpable" for the riot.

See Also: CNN correspondent Whitney Wild downplayed the violent threat against Justice Brett Kavanaugh's life and warned about political violence from both sides, after an armed man was arrested outside the justice's home, Wednesday.  

"It's a vibe shift," Rozenshtein laughed.

See Also: CNN media analyst on Kimmel interview: Biden could use 'exposure' that isn't 'too challenging' for him

At the time, per Hutchinson's testimony, Trump had been informed that men armed with AR-15s and "spears" were gathering near the Ellipse. Hutchinson testified that Trump then ordered the armed men to be allowed into the crowd with their weapons. He then directed the crowd to the Capitol.

See Also: Texas Rep Jasmine Crockett blamed Republicans for shooting: 'The blood of these children' is on their hands

There's still much that's unknown about the episode including, as Shugerman pointed out, whether the Secret Service followed the order and let the armed men through.

See Also:  Whoopi Goldberg says 'both sides' guilty of rhetoric like Schumer's against Kavanaugh, must 'be more careful'

Shugerman also believed before Hutchinson's testimony that Trump hadn't met the bar for a crime. But he said that after hearing Hutchinson's testimony, he saw two elements of a criminal charge for incitement potentially met: intent, and a bad act.

See Also: Pelosi defends not passing a bill, claims Supreme Court Justices aren't in any danger despite assassination attempt this week…

"Some speech is performative, but if a president give an order to do something, that's an order," Shugerman said. "This is not just political speech anymore — an order to take away metal detectors is a concrete act."

See Also:  Former aide Cassidy Hutchinson testifies on Jan. 6 warnings, pardon requests, and Trump trying to grab the wheel

And Rozenshtein argued that for any charging decision, prosecutors would still have to weigh the same balance between protecting political speech and punishing wrongdoing.

See Also:  CNN's Don Lemon defends questioning Karine Jean-Pierre about Biden's mental fitness: 'It's our job'

"Does [Merrick Garland] think that these facts are sufficiently egregious that Trump can be prosecuted without really anyone in the future being worried that if I make a speech criticizing some congressional budget resolution, I'm gonna be liable for incitement?" he asked rhetorically.

See Also:  MSNBC panel wonders if Ginni Thomas should be 'perp-walked' by Jan. 6 Committee

It's not clear how senior DOJ leaders like Attorney General Merrick Garland and Deputy Attorney General Lisa Monaco will view the testimony or if it's even new information for them.

See Also:  Joy Behar says 'The View' changed when Trump got elected: 'We used to have more laughs'

Whether Garland has the appetite to launch such a prosecution also isn't clear. Shugerman, among others, thought that incitement to riot may not even be the applicable charge in a situation where statutes already exist that prohibit the intimidation of members of Congress.

See Also:  Boris Johnson rebukes CNN talking point that American democracy is dying: 'Grossly exaggerated'

But the description of Trump's conduct is now public, as are the concerns of those around him that they would need pardons before he completed his term.

See Also:  U.S. Secretary of State Antony Blinken says Putin has 'already failed' in strategic objective to end Ukraine's independence

That, Rozenshtein and other argued, puts pressure on the DOJ to decide how it will act.

See Also:  Rep. Alexandria Ocasio-Cortez dodges on whether she'll support Biden in 2024, focuses on midterms: 'That's not a yes'

"Indictments are not just about whether the case is legally provable, but about whether its in the public interest to charge," he said.

No comments:

Post a Comment