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Opinion Why we should care about the 187 minutes

Reps. Jamie Raskin (D-Md.), Liz Cheney (R-Wyo.) and Bennie G. Thompson (D-Miss.), all members of the House Jan. 6 select committee, talk during a hearing on July 12. (Shawn Thew/AP)
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The House Jan. 6 select committee on Thursday will provide a blow-by-blow account of the 187 minutes that passed during the Capitol siege in which Donald Trump did nothing to rescue lawmakers and his own vice president from the mob he unleashed. It’s critical to understand what purpose this evidence will — and will not — serve.

Start with the non-legal aspects of the committee’s job. The committee set out to tell the complete story of Jan. 6 to provide a definitive historical account and assist in formulating suggestions to prevent a repeat in future elections. This effort is also critical for the public and the Republican Party to understand the depth of Trump’s betrayal and his egregious refusal to perform his duties as commander in chief.

If Trump, as president, failed to activate the armed services during a foreign attack on our homeland — or worse, put out tweets praising the attackers — it would be tantamount to treason. In the face of domestic terrorism, his obligation to act was no less clear.

The GOP’s refusal to prevent him from seeking office again (first by failing to convict him at his impeachment trial and now by declining to oppose his participation in the primaries) amounts to ratification of Trump’s treachery. It is also an indication of the depths of the party’s depravity. Forcing GOP voters and politicians to grapple with a potential second Trump term remains one of the committee’s critical functions.

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As for the legal significance of the 187 minutes, the public should understand that “dereliction of duty” under Article 92 of the Uniform Code of Military Justice applies to those in the military, not to civilians — including the civilian commander in chief. It may have been grounds for impeachment (which could have resulted in removal from office and a bar against holding future office). And it might be grounds for civil liability (i.e., Trump had a legal obligation to act and failed to do so when others were in harm’s way). But there is no criminal theory against Trump based on that charge.

This does not mean the 187 minutes are without legal significance. To the contrary, the full telling of this part of the saga can shore up evidence (virtually all from Republicans) that Trump corruptly sought to defraud the United States and to corruptly obstruct congressional proceedings.

Norman Eisen, who served as co-counsel to the House Judiciary Committee during Trump’s first impeachment hearing, tells me, “The key thing to remember is that his inactions and actions during that 187 minutes are not an isolated crime by themselves but rather the culmination of his alleged criminal conspiracies to defraud and to obstruct.” He adds that evidence about that period of time could “illuminate” Trump’s criminal intent, which would be critical to any prosecution of the former president, including by the prosecutor investigating Trump’s pressure campaign on Georgia’s election officials.

As Eisen and a group of Brookings Institution scholars explain in their comprehensive guide to prosecuting Trump, “Even if they had sincerely believed the election was stolen, frustration with the courts would not have entitled Trump and his allies to deploy dishonest and illegal means to overturn the outcome.” The statute concerning fraud upon the United States requires proof of specific intent to short-circuit a lawful function of the government and proof it was carried out by “deceitful or dishonest means.”

Trump’s refusal to intervene, even as he was watching the violence play out on his television, is powerful evidence that he was seeking to creating havoc and to disrupt the congressional proceedings. His inaction suggests that when all other nonviolent, illegal means failed, he was willing to use the mob to accomplish his ends.

Likewise, the statute concerning the attempt to “corruptly” obstruct an official proceeding requires prosecutors to show either that Trump acted with a corrupt purpose (i.e., preventing Congress from fulfilling its legal obligation to count electoral votes) or that he used corrupt means. Inviting the mob to descend on the Capitol — and specifically calling out Vice President Mike Pence, who Trump said “didn’t have the courage to do what should have been done to protect our Country and our Constitution” — substantiates Trump’s willingness to resort to any means to retain power. So does refusing to call off the mob for more than three hours.

As Eisen concludes, Trump’s “complicity in the violence when taken together with his failure to perform the duties to which he was legally obligated by his office are the capstone on what has already been a devastating argument about his criminality and of those who conspired with him.”

If the Jan. 6 committee’s hearing on Thursday is anything like its seven previous hearings, viewers should be prepared to learn just how deplorable Trump’s conduct truly was — and how solid the potential criminal case against him is.


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