Takeaway #2

A number of you have written in to say about the hearings, "No, that wasn't the big deal. This other thing was the big deal!" In almost every case I find myself agreeing with you. What it comes down to is there was just a huge amount of critical new detail in Hutchinson's testimony. And it was a challenge to evaluate the significance of it all in real time or organize it on a rank of significance. So TPM Reader KB notes that all the stuff about a war room at the Willard with Rudy and the top crazies starts appearing in a very, very different light if the plan was that Trump was going to go to the Capitol to in some sense lead the confrontation. It definitely seems like that wasn't just a possibility or something that was discussed but rather definitely Trump's plan and, one would imagine, what Rudy and his crew thought was going to happen.

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

TPM Reader EG says that the real news was Giuliani's role in the prep for January 6th. "The story centered around Giuliani and the preparation on the 2nd, as well as the set-up at The Willard. Trump had a very well-developed reason for wanting to grab the wheel. Sitting in the White House for 3 hours now is seen as the best he could do, having been thwarted by his Secret Service chief."

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We have this sense that Trump was there in the Oval Office watching the TVs, having a predatory thrill seeing the mob terrorize the folks who'd abandoned him. But Hutchinson's testimony makes it seem like he was probably pissed because his Secret Service detail had ruined the whole plan. He was supposed to be up at the Capitol not stuck back at the White House.

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

Many of the things we've learned are things we basically already knew or strongly suspected. The difference is new testimony which adds more confirmation, something more like proof. The idea that Trump was dead set on going to the Capitol wasn't my understanding of this at all. So that at least is pretty new to me.

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Having sat with this a bit now I think the biggest impact of this testimony may be something different and more general. Many of us have assumed that the committee's work will play out like this. They did their investigating. Now they are walking us through it in a series of hearings. The public will decide whatever they will decide. A report will be issued. And that's it.

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But the committee leaders have clearly been trying to use the public hearings to create a catalytic effect which furthers the investigatory process. Create a dynamic in which the impact of the hearings breaks loose more information, more testimony, more evidence. So the hearings become not just an account of what was found but a tool for advancing the investigation. They are already very focused on getting Pat Cipollone to testify.

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We have all gotten used to how much the GOP and official Washington can absorb and normalize about Trump's conduct and criminal behavior. But in this testimony today I think the committee may have gotten there. I'm not sure Meadows, Cipollone and others are going to be able to continue refusing to testify. The committee has also increased pressure on the DOJ, though we don't know just what DOJ already had in the works. The pace had seemed to be quickening on that front before today. The law enforcement side of this remains largely a black box. But on the committee investigation I think they've put the holdouts back on their heels.

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

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Talk (On Background) Is Cheap

Earlier this month, Ginni Thomas, wife of Justice Clarence Thomas, made a big show of her willingness and desire to march right up to Capitol Hill and clear her good name before the Jan. 6th investigation committee. Yesterday, her lawyer said the committee just turns out to be too biased. So she won't be testifying after all.

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

Two White House security officials who allegedly scuffled with the President in the presidential limousine are now denying through intermediaries what Cassidy Hutchinson said under oath in yesterday's hearing. But Ginni Thomas's switcheroo is a good reminder that talk — or rather claims through intermediaries — is cheap. People who claim they are just champing at the bit to testify usually end up refusing to testify.

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Indeed, it's fair to question the journalistic decisions behind some of these reports. Most of us had never heard of Cassidy Hutchinson until a few days ago. Her claims definitely deserve scrutiny. But testimony under oath is the price of entry to this conversation. Indeed, the two men in question, Tony Ornato and Bobby Engel, have been able to get denials into print without even agreeing to speak on the record. In other words, they've refused to call up reporters and say, "I never said what she claims and the incident did not happen." They have been able to get reporters to report that people 'familiar with their thinking' say they will deny it. I assure you: They could get their on-the-record quotes into print at the drop of a hat. All it takes is a phone call.

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

It is worth noting that one of the men has already been accused of lying on Trump's behalf and both had a reputation of working as Trump's enablers during his presidency. Indeed, day two reports suggest that the purported denials are perhaps more semantic than substantive, denying that the President "assaulted" the lead Secret Service agent as opposed to denying that there was an irate confrontation in the limousine in which the President demanded to be taking to the Capitol.

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Maybe these two will testify. Maybe the story is different than what Hutchinson claimed. But until the two are willing at least to speak on the record, it's really all meaningless. And her claims are more credible until these two agree to testify about this incident under oath.

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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.

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"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."

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

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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.

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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."

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"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."

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

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"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.

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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.

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"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.

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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.

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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.

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Bill Barr Can’t Flee The Stench Of What He Did For Trump

Attorney General Bill Barr revealed many things at the Jan. 6 Committee hearing on Monday.

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But for me, the biggest impression his testimony left was the depths he reached in serving Trump.

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

Barr narrated the period of time from Nov. 3, Election Day, until he departed on Dec. 23. Over those seven weeks, Barr recounted how Trump began to reach for wilder and wilder claims that might explain why he was not the loser in the election, but rather, the victim of mass electoral fraud.

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To do that, Barr also described how he himself became enmeshed in voter fraud investigations, not only pursuing claims that he admitted that he knew were bogus, but also apparently taking a personal role in investigations normally conducted by line prosecutors.

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Barr recalled a meeting with Trump he had in early December, after he had made a point of telling the Associated Press that the DOJ had not found evidence of widespread voter fraud in the election.

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Trump began to discuss claims of fraud in Detroit. The attorney general was prepared. "At that point, I knew the exact number of precincts in Detroit," Barr narrated.

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It's one example, but it points to a level of granularity that's typically unfamiliar to attorneys general, tasked with overseeing national law enforcement policy.

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

But let's look at what else Barr told the committee about the voter fraud allegations.

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

"I was influenced by the fact that all the early claims that I understood were completely bogus and silly and usually based on complete misinformation," Barr said.

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

A few things are odd here. One is the presumption that any of the claims might have been made in good faith, considering what they alleged, the people making them and the chain of events — including Trump's refusal to concede — that led to them being made.

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Barr himself boosted the suggestion that Democrats would use mail-in voting to steal the election before November, saying at one point that the Democrats were "creating an incendiary situation where there's going to be loss of confidence in the vote, it'll be a close vote. People will say 'The President won Nevada — oh, wait a minute! We just discovered a hundred thousand ballots, every vote must be counted!'"

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After the election took place, Barr removed a longstanding DOJ policy which banned voter fraud investigations until after the results had been certified. That decision accepted the premise of the claims that Trump was making, and also led to the resignation of the head of the DOJ's election crimes branch.

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."

Barr also told the committee about a mid-November meeting that he held with Trump.

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"The department doesn't take sides in elections. The department is not an extension of your legal team," Barr recalled telling the former President.

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Look what he said next: 

"Our role is to investigate fraud and we'll look at something if it's specific, credible and could affect the outcome of the election. We're doing that. It's just not meritorious. It's not panning out."

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

Who made the "specific, credible" claims of voter fraud? Did anybody do so in 2020? If so, please let me know. Otherwise, it seems that Barr was willing to let the DOJ become, in his phrasing, "an extension of [Trump's] legal team," investigating voter fraud claims that could not affect the outcome of the election.

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

In spite of all this, Barr has still said that he would vote for Trump, the would-be election thief, again in 2024.

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

And, perhaps more to the point, even as the attempt to subvert the 2020 election was going on, Barr couldn't help but offer Trump cloying praise in his resignation letter.

\ 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.  

"Your record is all the more historic because you accomplished it in the face of relentless, implacable resistance," Barr wrote in that missive.

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

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How Republicans Screwed Themselves With The Jan. 6 Committee: A Retrospective

In his opening statement of the first public hearing, Jan. 6 committee chair Bennie Thompson (D-MS) reminded listeners of the different, and likely more toothless, version of the panel he and his fellow Democrats were clamoring for around this time last summer.

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"My colleagues and I all wanted an outside, independent commission to investigate January 6th, similar to what we had after 9/11," he said. "But after first agreeing to the idea, Donald Trump's allies in Congress put a stop to it. Apparently, they don't want January 6th investigated at all."

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It's a callback to a time when short-sighted Republicans saved Democrats from a version of the fact-finding effort that Trump's allies could have much more easily obstructed.

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Back then, as Thompson recalled, Democrats hungered for a commission in the vaunted 9/11 model — resolutely bipartisan and largely unanimous. Most Republicans, after some initial and short-lived endorsement of a theoretical independent commission, didn't really want to investigate the insurrection at all beyond a superficial look at Capitol security weak spots.

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Still, Reps. John Katko (R-NY) and Thompson, leaders of the House Homeland Security committee, got to work outlining the contours of an independent commission in spring 2021. The former reportedly did so at House Minority Leader Kevin McCarthy's (R-CA) behest. 

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."

Their design was so emphatically collaborative that it would have given the recalcitrant Republicans extensive control over the investigation: Republican cooperation was required to issue each subpoena; the commission's final report was due not later than the last day of 2021, well before the midterms; the non-lawmaker appointees would have been evenly split between the two parties, increasing the chances of a partisan schism. 

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"I ask you to set aside politics just this once," Katko implored his colleagues from the House floor, banging on the lectern to punctuate his words. "Just this once — I beg you — and pass this bill."

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But Republican leadership had turned on the idea. McCarthy, at the eleventh hour, urged his members to vote against the legislation he'd asked Katko to help draft. Thirty-five of them voted for it anyway.

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

Senate Minority Leader Mitch McConnell (R-KY), too, pressured his members to oppose the bill. Republican leadership found it easier, on the whole, to write Katko out of the story, the better to decry the panel as a brainchild of Democratic leadership.

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"I've made the decision to oppose the House Democrats' slanted and unbalanced proposal for another commission to study the events of January the 6th," McConnell said from the Senate floor.

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

Six Republicans ignored his guidance, four fewer than were needed to overcome the filibuster. 

 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.  

And the independent commission, one which Republicans could have manipulated far more easily than its current iteration, was dead. Katko announced that he'd retire from the House a few months later. 

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

With the Senate effectively out of the picture, the drama moved back to the House, where Speaker Nancy Pelosi (D-CA) could unilaterally set up a select committee staffed by current lawmakers. 

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

With Republicans having rejected a format much more amenable to their interests, Democrats had all the advantages. Pelosi would appoint 13 members, though she'd "consult" with McCarthy on five of them. Her chosen chair would have unilateral subpoena power, and the committee could take all the time it wanted on the investigation. 

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

McCarthy announced his picks: Reps. Jim Jordan (R-OH), Jim Banks (R-IN), Troy Nehls (R-TX), Kelly Armstrong (R-ND) and Rodney Davis (R-IL). Pelosi rejected the Jims. 

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

Jordan and Banks, along with Nehls who she okayed, had voted against certifying the 2020 Electoral College vote. All five Republicans voted against impeaching then-President Donald Trump after the insurrection.

See 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.

"With respect for the integrity of the investigation, with an insistence on the truth and with concern about statements made and actions taken by these Members, I must reject the recommendations of Representatives Banks and Jordan to the Select Committee," Pelosi said in a statement.

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In a fit of pique, McCarthy held a high-volume press conference, declaring that if the Reps. Jims couldn't serve, none of his picks would. An indignant Nehls, waving his prop inches from McCarthy's face, pointed out that he'd already prepared a binder and everything.

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."

Pelosi, who by that point had appointed Rep. Liz Cheney (R-WY) to the committee, shrugged. The committee would be bipartisan either way, she pointed out. A few days after McCarthy withdrew the rest of his picks, Pelosi appointed Rep. Adam Kinzinger (R-IL) as well. 

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

"Our members all regret that the initial hope for an independent commission to investigate this was derailed by allies to the former president after details were agreed by both parties," a Jan. 6 committee aide told reporters last week. 

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

The members may regret it. But the American people, who are learning details and connections unearthed by a serious panel featuring Republicans who lack the power and desire to derail the investigation in favor of their party's political prospects, are better for it.  

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