Why not investigate and indict Trump for inciting an insurrection? Why not indict him for demanding that Justice Department employees falsify voting results in violation of Section 20511 of Title 52 in the U.S. Code? Again, maybe he thought he really won and didn’t actually want to overthrow the results.
Hmmm. Imagine we had evidence that Trump knew there was no fraud and knew he could not get officials to change the result, but wanted to lay the predicate for an insurrection, even a violent one. Sounds impossible to find such incriminating, airtight evidence, right?
Well, consider what The New York Times reported last week, regarding a phone call Trump made on Dec. 27:
Mr. Trump pressed the acting attorney general at the time, Jeffrey A. Rosen, and his deputy, Richard P. Donoghue, on voter fraud claims that the Justice Department had found no evidence for. Mr. Donoghue warned that the department had no power to change the outcome of the election. Mr. Trump replied that he did not expect that, according to notes Mr. Donoghue took memorializing the conversation.“Just say that the election was corrupt + leave the rest to me” and to congressional allies, Mr. Donoghue wrote in summarizing Mr. Trump’s response. ...The phone call by Mr. Trump was perhaps the most audacious moment in a monthslong pressure campaign aimed at enlisting the Justice Department in his crusade to overturn the election results.
Justice Department officials told him there is no widespread fraud. “You guys may not be following the Internet the way I do,” Trump insisted. Still, the department’s lawyers, according to Donoghue’s notes, “Told him flat out that much of the info he is getting is false, +/or just not supported by the evidence — we look at allegations but they do not pan out.”
Former House Intelligence Committee counsel Dan Goldman tells me, “Trump’s statements to Rosen, Donoghue — and likely others — demonstrate that he knew he did not have true concerns about the legitimacy of the election but he simply wanted to corruptly overturn it without any factual basis.” Goldman explains, “By asking DOJ to lie so he and the Republican congressmen can use the lie to reverse the outcome of the election, Trump plainly intended to corruptly overturn the election. Any state or federal prosecutor can use these statements against him.”
The phone call took place 10 days before the Jan. 6 “stop the steal” rally, when Trump implored the mob, whom he had already convinced that the election was stolen, to march on the Capitol just as Congress was tabulating electoral college votes. Goldman points out, “[One] of the open questions after Impeachment 2.0 was whether and to what extent Trump was aware of the plans to violently storm the Capitol that existed online before January 6.” However, through his admission in his conversation with the Justice Department attorneys “that he’s very familiar with what is on the Internet, Trump helps prosecutors show that he knew of those plans when he incited the crowd to ‘fight’ and go to the Capitol on January 6. This is powerful proof that he conspired with the rioters to interfere in the lawful functioning of Congress.”
Trump knew there was zero evidence of fraud, both when he pressured Raffensperger and when he incited the crowd. Just as he did when he demanded the Ukrainian president announce an investigation into then-candidate Joe Biden or his son, he was asking the Justice Department not for evidence, but a pretext. He did not even expect the department to change the results; he just wanted it to promulgate his lie so he could finagle a way to reverse the results. He was looking for a pretense to force the reversal of the election.
As constitutional scholar Laurence H. Tribe tells me, “Everything he said and did after that Dec. 27 conversation, including strong-arming Raffensperger and pressuring [Vice President Mike] Pence, appears in a different and more damning light." He adds that the revelation "establishes Trump’s intention to hold onto power regardless of the actual election results.”
Remarkably, the Justice Department notes are not the only instance showing Trump’s desperation to hold onto the presidency despite a lack of evidence of fraud. Norm Eisen, former co-counsel for the House Judiciary Committee during the first impeachment, explains: “These notes are part of a pattern of behavior by Trump that proves he knew he had not really won the election and was trying to seize an outcome unsupported by the facts. That in turn goes to the bad intent prosecutors investigating Trump for election interference will have to prove.” That pattern includes his 2019 call to the Ukrainian president and his call to Raffensperger, which Eisen says “are expressions of a person who doesn’t care about the underlying evidence or truths and who wants false public declarations by officials that he can corruptly use to drive a Big Lie.”
Hurdles in proving intent arise in many criminal cases, yet juries often accept circumstantial evidence that is far less damning than the recording of the Trump-Raffensperger call and the Justice Department notes. It’s almost as if this once-in-a-lifetime incriminating evidence has been served on a platter for prosecutors. Moreover, since the Justice Department has already held that overthrowing an election is outside the scope of “any” official’s duties, Trump has no special protection for his actions. If “no one is above the law” is to have any meaning, he must be subject to vigorous federal investigation.