Despite ample evidence and unprecedented revelations, he may escape conviction and even get reelected.
After four riveting hearings, mercifully without the usual personal grandstanding, the House Select Committee on the January 6 insurrection has revealed stunning new information – including unexpectedly implicating a Supreme Court justice – and raised serious conundrums for the US political and constitutional system.
The depth of villainy it has exposed has massively strengthened the potential of a case for criminal charges against former president Donald Trump and his worst confederates. Yet it appears the consequences of this shocking saga of malfeasance at the highest levels against the US constitutional order could prove negligible.
Mr Trump’s conduct was far more viciously malevolent than previously understood. He knew the mob rampaging through Congress was searching for and vowing to “hang” his vice president, Mike Pence. That murderous horde came within a mere 40 feet of him as the vice president was whisked to safety.
Mr Trump’s reaction was a tweet plainly calculated to further inflame anger against Mr Pence and increase chances he could be killed for not agreeing to unlawfully and unconstitutionally block the certification of Joe Biden’s victory. A confidential informant has assured the FBI the rioters would certainly have killed Mr Pence if they caught him. According to committee Vice Chair Liz Cheney, Mr Trump told his aides Mr Pence “deserves it,” although, of course, he denies it.
To date, the Department of Justice has investigated and prosecuted the rioters, but there is no apparent federal investigation or grand jury probing Mr Trump and his collaborators. They may be strategically leaving that to the committee, for now.
The potential charges against the former president and an attorney, John Eastman, and possibly others including former White House Chief of Staff Mark Meadows and a former Justice Department official Jeffrey Clark, have become blindingly obvious.
Mr Trump and Mr Eastman, who later requested a presidential pardon, could be extremely vulnerable to prosecution for attempting to obstruct an official proceeding of the US, and/or conspiracy to defraud the US, both serious felonies, by seeking, in various ways, to block or subvert the legally-mandated confirmation of the election results by Congress on January 6.
In a Committee-related civil case in March, a federal judge concluded that Mr Trump and Mr Eastman were probably guilty of both these crimes, declaring “The illegality of the plan was obvious.” Such a finding virtually demands a federal criminal investigation.
Leaders of the white supremacist gangs the Proud Boys and Oath Keepers have been charged with the exceptionally serious crime of seditious conspiracy because of ample evidence they co-ordinated plans to use force to stop the January 6 procedure.
But it would be extremely difficult to convict Mr Trump or Mr Eastman of seditious conspiracy unless evidence is discovered to specifically tie them to plans to use force. Given Mr Trump’s Mafia-boss style of coded messaging – unsubtle yet indirect hints – to his supporters, that is unlikely to ever emerge.
But it is noteworthy that Mr Trump is suddenly promising presidential pardons for rioters if he’s re-elected, suggesting a potential quid pro quo for their silence. And his most recent 12-page response to the hearings, amid its endless ramblings and incessant fabrications, emphasises time and again how and why he was convinced the 2020 election was fraudulent.
That’s significant because both charges to which he’s vulnerable would require proving his corrupt intent. It should be easy enough, given the parade of his senior officials who testified they told him he really lost a clean election. One confirms he privately blurted out while watching Mr Biden on television, “can you believe I lost to that guy?” while publicly insisting he won.
There’s no defence in US law for “willful blindness” in the aid of a corrupt intent, which former attorney general William Barr strongly suggested Mr Trump was employing when refusing to accept facts and simply moving from one preposterous conspiracy theory to the next in search of some pretext to overthrow the election.
Mr Trump could also be potentially liable for wire fraud charges for raising hundreds of millions of dollars from his supporters to supposedly fight election fraud. It was yet another nonexistent Trump fund that went into his own coffers.
He’s clearly, and maybe particularly, vulnerable to state-level criminal charges in Georgia, where he is being investigated regarding his audiotaped effort to convince officials to “find” exactly the number of votes to change the election results in his favor. That may well be the most plausible forum for a criminal reckoning.
Any federal effort to prosecute a former president who may run again and remains wildly popular in much of the country is fraught with immense risks, including future unwarranted revenge prosecutions against other former presidents.
The most unexpected revelations involve the depth of involvement by Virginia Thomas, wife of Supreme Court Justice Clarence Thomas, in enthusiastically encouraging the corrupt and unconstitutional reversal of the election on the grounds that “there are no rules in war.”
She corresponded with Mr Meadows, Mr Eastman, Republicans in Arizona and others demanding a coup d’etat with “no rules”.
Yet Justice Thomas did not recuse himself from a Supreme Court case in which he alone voted in favour of Mr Trump’s effort to withhold White House communications from the Committee, including the “no rules” message from his own wife to Mr Meadows.
It is unprecedented that the wife of a Supreme Court justice is deeply implicated in a plot to overthrow the constitutional order, and even more that he may have acted corruptly to try to shield her.
The truth of his knowledge and involvement may never be definitively established, but the “no rules” stench will linger over the Court for decades.
Yet despite all this mindboggling venality, it is not in the least clear that the Committee’s superbly choreographed hearings and irrefutable narrative of unimagined corruption has significantly altered the US political equation, or that it ever will.
Most of the right seems impervious to discomforting facts, fed a constant diet of paranoid fantasies by Fox News and never encountering the Committee’s well-documented evidence. If they do, they’re primed to dismiss it as just more spin.
Almost all Republican leaders are, at best, ignoring and refusing to engage with these realities. At worst, they’re actively promoting the stolen election nonsense and “flood the zone with shit,” as Mr Trump’s former campaign chairman and White House chief strategist Steve Bannon more than once explained is the best way to deal with damning facts.
The truth may eventually sink in, or Republican leaders could finally decide they have had enough. But there is no guarantee of either happening.
Mr Trump is clearly nervous, and with good reason. But he may survive even this tsunami of unheard-of Ignominy.