When it comes to whether the proceedings of the Jan. 6 committee will lead to criminal charges, there are two vital questions. Can it be proved that those involved in plotting to overturn the 2020 election:
In a 248-page filing in the legal battle over former White House chief of staff Mark Meadows’s potential testimony, the committee offers new details of testimony from his aide Cassidy Hutchinson.
On the first count, Hutchinson confirmed that the White House Counsel’s Office repeatedly told those plotting to overturn the election that their plan to use alternate slates of electors — or go even further — was not legally sound. Despite this, Meadows and others pressed forward with their attempts to overturn the election and with the Jan. 6 rally.
On the second count — the idea that this could interfere with Congress’s duties — Hutchinson said Meadows was directly warned about the prospect of violence that day. She said Anthony Ornato, a senior Secret Service agent and political adviser to the White House, discussed the subject with him in early January.
“I just remember Mr. Ornato coming in and saying that we had intel reports saying that there could be violence on the 6th,” Hutchinson said. “And Mr. Meadows said: All right. Let’s talk about it.”
Hutchinson suggested that Ornato had made a point to bring up the subject: “I believe they went to the office for maybe five minutes. It was very quick. Mr. Ornato had stopped him as he was walking out one night to talk about this.”
Separately, Hutchinson detailed the multiple instances in which the White House Counsel’s Office objected legally to the plans to overturn the election on Jan. 6.
According to Hutchinson, the counsel’s office said in some meetings on the subject that it was reviewing the legality of such ideas. But in other meetings — potentially as early as November, more than a month before Jan. 6 — it said the plan was not legally sound.
Q: And so, to be clear, did you hear the White House Counsel’s Office say that this plan to have alternate electors meet and cast votes for Donald Trump in States that he had lost was not legally sound?HUTCHINSON: Yes, sir.Q: And do you remember approximately when that was?HUTCHINSON: I’m trying to not be overly broad, but, right now, sitting here, I can recall at the time, perhaps early to mid- December. Now, it very well could’ve been the end of November, but I’m trying to think about benchmark events and dates in my head, and early to mid- December is the safer bet.Q: And who was present for that meeting that you remember?HUTCHINSON: It was in our office. It was Mr. Meadows, Mr. [Rudy] Giuliani, and a few of Mr. Giuliani’s, like — well, I don’t know if the correct term is “associates,” but Mr. Giuliani’s associates.
Hutchinson was asked whether this conclusion from the White House Counsel’s Office was also raised in meetings with members of Congress. She said it was. The members she said were present: Reps. Scott Perry (R-Pa.), Matt Gaetz (R-Fla.) and Louie Gohmert (R-Tex.).
The evidence here is piecemeal; the committee didn’t release the full transcript of Hutchinson’s testimony, so some potentially relevant pages are not yet public. Thus, we don’t know what else she said on the subject.
A big question is whether the potential violence Meadows was warned about was linked to those protesting Trump’s loss and whether he was warned that those protesters might turn violent — but didn’t stop the Jan. 6 rally anyway. (At the rally, Trump would urge his supporters to march to the Capitol — while qualifying that they should do so “peacefully.” But Trump’s personal lawyer Rudy Giuliani called for a “trial by combat.”)
As for the White House Counsel’s Office’s legal advice: We had known, based on previous reporting, that the counsel’s office had objected to various efforts to overturn the election and even threatened mass resignations. But Hutchinson’s testimony establishes that the counsel’s office concluded the particular plan pursued by Trump and his allies was not legally sound and that the office informed specific people — people who then pressed forward.
These are both key elements of proving that the effort was criminal. To meet the legal standard for obstructing an official proceeding — the crime the Jan. 6 committee has zeroed in on — you need to prove that the actions obstructed the proceeding and that they were undertaken with corrupt intent (i.e., knowing that what they were doing was wrong).
Indeed, they are two elements that the judge last month suggested Trump’s actions had satisfied.
U.S. District Judge David O. Carter said Trump’s actions appeared corrupt because he “likely knew that the plan to disrupt the electoral count was wrongful.” In Trump’s case, it was both because his allies told him that his allegations of widespread voter fraud were baseless and because the lawyer advising him on the plan, John Eastman, conceded that the plan violated the Electoral Count Act. (Eastman argued that law was simply to be disregarded because it was, in his estimation, unconstitutional.) It would be significant if, layered on top of that, the plotters were informed of the illegality of their plan.
Carter also said Trump urging the Jan. 6 rallygoers to march to the Capitol represented his “galvanizing the crowd to join him in enacting the plan.”
“Together, these actions more likely than not constitute attempts to obstruct an official proceeding,” the judge concluded.
(The Justice Department has used this criminal charge in several cases involving Jan. 6 rioters.)
The new documents also reveal that, despite the White House counsel’s advice and apparently after the office informed him of the prospect of violence, Meadows endorsed one of the most far-flung ideas: having Vice President Mike Pence try to unilaterally reject electors by disregarding the Electoral Count Act.
After Rep. Jim Jordan (R-Ohio) sent him a text about the idea — one Jordan has said he was merely forwarding from someone else — Meadows responded on Jan. 5: “I have pushed for this. Not sure it is going to happen.”