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Opinion The smoking gun that Liz Cheney is looking for on Trump comes into view

Rep. Liz Cheney (R-Wyo.). (Sarah Silbiger/Bloomberg News)

For weeks, Rep. Liz Cheney has hinted that the House select committee examining Jan. 6 might urge the Justice Department to consider prosecuting Donald Trump. The grounds for this criminal referral might be that Trump obstructed the “official proceeding” in which Congress counts presidential electors.

Now we’re able to glean a clearer sense of what the Wyoming Republican has in mind. It provides a peek at the smoking gun that Cheney and the committee are searching for — or one of them, anyway.

The core of the matter is this: For more than two hours, Trump watched his supporters wage a violent assault on the seat of U.S. government for the purpose of disrupting the 2020 election’s conclusion, after having incited them to commit that disruption, and didn’t call them off.

Some comments from Cheney herself — and clarification I’ve now obtained from a Cheney spokesman — shed new light on where this is going. The short version: It’s likely the committee will explore recommending changes to federal law to further clarify that obstructing the electoral count in Congress is a crime subject to stiff penalties.

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This is an idea worth considering. It would be another step toward securing our political system against a future Jan. 6. It would raise the question of whether Republicans would support such a move.

On Sunday, Cheney told ABC News that Trump’s failure to call off his mob constituted a “dereliction of duty.” She noted that at any point, Trump could have gone on TV and urged the mob to stop, but didn’t. Cheney added:

I think one of the things the committee needs to look at — we’re looking at a legislative purpose — is whether we need enhanced penalties for that kind of dereliction of duty.

I asked a Cheney spokesman for clarification of this. “The committee will explore whether to make changes to current law to hold a future president accountable,” he told me, without elaborating. “That’s part of the legislative purpose of the committee.”

Now note that Cheney has repeatedly suggested the committee is examining whether Trump, in refusing to talk down the mob, might have done so as part of a deliberate effort to obstruct Congress’ counting of electors.

The committee is reportedly looking at whether to make that the basis for recommending criminal prosecution. The grounds would be that it violated federal law barring obstruction of an “official proceeding.”

Determining whether Trump’s conduct constituted such a violation is complicated. It might require determining whether Trump saw the violence as instrumentally helpful in subverting the electoral count, and deliberately refrained from calling off the attack to serve that express goal.

2 Capitol Police officers: The government we defended last Jan. 6 has a duty to hold all the perpetrators accountable

The committee has established that numerous Republicans frantically urged Trump to call off the riot, even as he enjoyed watching it all unfold on TV. Journalist Jon Karl reports that Trump didn’t take at least one of their calls.

The committee wants to determine whether Trump indicated a desire to see the mob continue disrupting the electoral count. We don’t know if it will prove this.

Then there’s the question of whether disrupting the electoral count constitutes obstructing an official proceeding, and whether Trump, in inciting the mob to descend on the Capitol during that count, participated in that obstruction. We don’t know exactly what we’ll learn there, either.

But beyond that, we can now surmise where this will likely go: Precisely because the statute is murky on these points, the committee will likely recommend changes to it that make it clearer that disrupting the electoral count is a federal crime, and further penalize it.

Reform to prevent another Jan. 6

This is an idea worth talking about, and NYU law professor Ryan Goodman says it’s legally doable.

“It would be valuable for the committee to deliver recommendations for strengthening the federal criminal code to protect against obstruction of the electoral count,” Goodman told me. Such a reform, he added, would ensure that “criminal law fully deals with efforts to disrupt” that count, which “could help deter future threats to our democracy.”

Goodman said the committee could recommend this while avoiding implying that Trump’s conduct did not violate current statute. It could recommend “enhancing the criminal penalties for obstructing the electoral count.”

On Dec. 13, Rep. Liz Cheney (R-Wyo.) detailed a series of text messages Mark Meadows received on Jan. 6 from Donald Trump Jr. and Fox News host Laura Ingraham. (Video: AP)

This would write an explicit protection against obstructing the electoral count into the law, Goodman said, but without undercutting the idea that “obstruction of congressional proceedings is already criminal.”

This goal would undercut the Republican talking point that the committee lacks a real legislative purpose and is illegitimate. Mulling such a reform is obviously a legitimate legislative purpose, as is mulling reform of the Electoral Count Act.

In an important sense, we already have our smoking gun. As Cheney told ABC News:

We have firsthand testimony that his daughter Ivanka went in at least twice to ask him to please stop this violence.
Any man who would not do so, any man who would provoke a violent assault on the Capitol to stop the counting of electoral votes, any man who would watch television as police officers were being beaten, as his supporters were invading the Capitol of the United States, is clearly unfit for future office, clearly can never be anywhere near the Oval Office ever again.

How many congressional Republicans would agree with this statement? How is it possible that the answer is: Very few?

This is why it will be interesting to see if Republicans will support strengthening the criminal code against disruption of the electoral count, and whether a certain pair of Democratic senators will support ending the filibuster to pass such a safeguard.

We may soon get answers to those questions. And they probably won’t be to our liking.