Let’s be clear: In refusing to testify to the House select committee examining Jan. 6, House Minority Leader Kevin McCarthy may well be helping to cover up potential crimes committed by Donald Trump.
McCarthy’s refusal may be the most significant moment thus far in the wide-ranging effort by Trump allies to cover up his Jan. 6-related corruption. That’s because McCarthy, who reportedly appealed to Trump as the violence unfolded, likely has some of the most direct knowledge available of Trump’s conduct as the mob rampage continued.
That could have criminal implications, if Trump’s attempt to subvert the electoral count in Congress amounted to an effort to obstruct an official proceeding.
“There’s no doubt that McCarthy is a material witness to a possible crime by the former president,” New York University School of Law professor Ryan Goodman told me. “His conversation with Trump during the height of the riot could provide direct evidence of Trump’s mind-set and scheme.”
The true nature of what that conversation could tell us keeps getting lost. It’s not just that it could reveal that Trump displayed extraordinary depravity and malevolence in ignoring numerous frantic pleas to call off the rioters.
It’s also that this knowledge could reveal that Trump may have come to see the violence as instrumentally helpful to his cause of subverting the election’s outcome.
You can see the importance of this in the select committee’s letter to McCarthy. In it, the committee notes that McCarthy screamed at Trump to call off the rioters. Trump reportedly replied: “Well, Kevin, I guess these people are more upset about the election than you are.”
The committee wants to know more about that. Its letter notes:
As is readily apparent, all of this information bears directly on President Trump’s state of mind during the January 6th attack as the violence was underway.
The committee wants to question McCarthy about that conversation and other communications with Trump, his legal team and others.
Behind this anodyne language about Trump’s “state of mind” lies something potentially very grave. The committee plainly wants to know if Trump hinted or even somehow indicated to McCarthy — or others — that his calling off the rioters was in some way contingent on Republicans subverting or delaying the electoral count.
To be clear, such an occurrence would only be marginally different from what actually did reportedly happen. In Trump’s reported phone call with McCarthy, he clearly sided with the rioters and directly linked their violence to his goal of disrupting the congressional count of electors.
Trump also attested to that disruptive goal while inciting the rioters before they attacked. And as Marcy Wheeler details, some of the rioters themselves allegedly demonstrated this was their goal in invading the Capitol.
It would only be the tiniest leap from what Trump did say to a hint or an open indication that he would only call off the rioters if Republicans delayed the electoral count.
Remember, while the violence was happening, Trump and his lawyer Rudolph W. Giuliani reportedly called at least one GOP senator and urged him to secure such a delay. Also recall that Trump thought his procedural coup was in the process of failing — as the committee’s letter notes — and that he needed Republicans to do more that day.
It’s easy to see Trump communicating this to McCarthy in his trademark mob-speak: Look, if you want me to call off the rioters, you’re gonna have to do the right thing.
It is not the select committee’s job to investigate criminality, of course. But it can make criminal referrals to the Justice Department, and it is reportedly exploring whether to recommend that the department investigate whether Trump, in trying to subvert the electoral count, criminally obstructed an official proceeding.
Goodman notes that McCarthy’s direct knowledge of Trump’s conduct during the violence could illuminate whether Trump violated the federal statute that bars such obstruction.
“Trump’s greatest legal exposure is for the criminal obstruction of congressional proceedings, and McCarthy appears to have direct evidence that goes to the heart of what’s needed to prove that crime,” Goodman told me.
“Did Trump say anything that connected his unwillingness to call off the mob to his wanting Republican members of Congress to delay the certification?” Goodman said. “What’s already been reported about the two men’s conversation already comes very close to that being the implied message.”
McCarthy may successfully evade testifying to the select committee about all this. But if the Justice Department does scrutinize whether this constituted criminality by Trump — which of course should be determined strictly as a matter of law — it might be harder for McCarthy to avoid disclosing what he knows.
“If this were a criminal investigation, McCarthy would surely be a material witness and would not be able to resist a Justice Department subpoena to tell what he knows,” Goodman told me.
What we do know about Trump’s corrupt conduct is already extraordinarily terrible. And whether criminality occurred, the committee should flesh out as much as can possibly be established about it.
But what actually happened may be considerably worse than what is currently known. Let’s not be under any illusions about the potential gravity of what McCarthy may well be hiding from the committee — and from the country.