The Jan 6 Committee Just Delivered Its Coup de Grace Against Trump” by umair haque, published in Medium.com 10/18/2022
It might not seem like it, but the Jan 6th Committee just delivered its coup de grace. A punishing, final blow in the case against Donald Trump — and in defense of American democracy. What happened at yesterday’s hearing was a remarkable series of moments — whose cut and thrust were to begin to finally do real justice for the indignities and abuses of the Trump Years.
What do I mean? What’s the coup de grace? The Committee began by summarizing its case to date. American media had spent quite a while falling for the oldest trick in the book — “It was just a tourist visit!” cried the fanatics, and so pundits replied, “no it wasn’t! It was a riot!” LOL, job done, catastrophe minimized, Big Lie spread. And so the Jan 6th Committee’s first job was to establish that, no this was no mere “riot.” It was something far, far darker: as they put it, a “sophisticated, multi-part plan” with the aim of thwarting the peaceful transfer of power.
In other words, Jan 6th really was a coup attempt. To put it even more precisely, the culmination of a series of coup attempts, which, following the usual pattern of autocrats, go from soft to hard. First come the legal challenges, then the procedural attacks, and when all that doesn’t work, usually finally, as all that fails, there’s a bloody, violent attempt by the autocrat’s forces, on the seat of democracy itself. All that was exactly what happened on Jan 6th, and in the months leading up to it: a long series of baseless legal challenges, then attempts to intimidate and pressure figures charged with certifying and counting votes (“I’m just looking for 11,000 votes!”), then fake slates of electors — and when all that wasn’t enough, finally, Jan 6th itself.
The Committee did stellar work establishing all that. And while it might have even been obvious, it’s crucial that such facts become part of the formal political record — as we’re going to shortly see.
So Jan 6th was no mere “riot” — but a link in a larger plan. The next stage was to establish that Jan 6th was made of no mere rabble, no mere spontaneous upwelling of justified anger, but something darker, too: a true hard coup attempt, made of armed paramilitaries, fanatics, led by extremists, itself planned and organized. The Committee, too, did stellar work in establishing this crucial fact as well: those weren’t “tourists,” and they were hardly just disgruntled farmers, either. They were formal members of supremacist paramilitaries, of right wing “militias,” who’d trained and practiced for just such an opportunity — to bring down the government, violently. They wore tactical gear and were heavily armed. They attacked the Capitol using military tactics and formations, like “stacks.”
This was a very real hard coup attempt — not just hillbillies rattling pitchforks, but fanatics and extremists who thought of themselves as officers and soldiers in armies, whose aim was to violently overthrow democracy itself. Incredibly serious stuff — especially given the context, which, remember, was much of the media insisting it was a “riot,” gullibly falling for the bait that it was just a “tourist event,” patting themselves on the back for disproving that lie, but in the process, only becoming complicit in another one. The Committee showed, beyond a shadow of a doubt, that this was a serious hard coup attempt — an attempt to use hard power, real force, organized violence, to overthrow democracy.
But all of that left one question. How much was all of this Donald Trump’s responsibility, fault, how much of it a product of him? How much, specifically, was Jan 6th, and the events which led up to it, to be laid at Trump’s tacky doorstep?
To understand why that question matters, remember the point of the Jan 6th Committee hearings. It’s whether or not to issue a criminal referral to the Justice Department. To recommend, in other words, whether or not the President should be criminally charged. If the Committee doesn’t recommend a criminal referral, the President’s both legally acquitted and morally exonerated, because, well, then it’s unlikely the Justice Department tries him. But if it issues a criminal referral, pressure — significant, stern pressure — is put on the Justice Department to bring criminal charges, precisely because the Jan 6th Committee has at least morally implicated the former President. By saying, yes, this was his fault.
That was the point of this hearing. Not the criminal referral itself, yet — but the final element necessary for it. And that’s what lawyers call mens rea. Mens rea is basically “mindset,” or the “motive” in “motive, mean, opportunity,” if you like. The point of this specific hearing was to examine Trump’s mens rea — his mindset and motivation.
Why does mens rea matter? Well, let’s think of a murder case. There are degrees of murder — from first to third down to manslaughter. And what makes the difference between them isn’t really how bloody the crime is — but what the criminal’s mindset was. Was it a crime of passion, born in the heat of the moment? Was it merely an accident — a preventable one, due to negligence? Or was it something cold, calculated, planned — premeditated?
That, of course, is the highest form of murder there is. And so what the Jan 6th Committee was doing was saying something like this: “Over the last few months, we’ve established that, yes, this really was an attempt to murder democracy. But what degree of murder was it? Murder in the third, a crime of passion? Mansalughter — negligence, an accident? Or was it first-degree murder: premeditated, cold, calculated?”
Perhaps you see why all that matters. Let me make it even clearer. To send the strongest possible criminal referral to the Justice Department means establishing a clear mens rea. Indisputable evidence of a mindset, a motivation — of premeditation. Find that, and the highest possible burden of proof has been met: we have not just the smoking gun, but the murder plan itself. And having met that burden of proof, it becomes a duty to try the crime, or at least send the referral to try the crime.
In other words, the J6 Committee is trying to do as much work as it’s possible to do for the Justice Department, so that whatever referral it sends is bulletproof, indisputable, beyond any reasonable debate, and way past any reasonable doubt. In turn, that gives the Justice Department a slam-dunk of a case — one which it has little excuse not to try.
Hence, this hearing’s focus was on the last element necessary to really make legal fireworks happen, the missing link between smoking gun and violent crime: did the offender in question premeditate this murder attempt, plan it out, plot it, did he fire the gun himself, and always want to pull the trigger? Mens rea. Perhaps you see why it matters so much in legal circles — and why it does in this instance, too. Because here we’re examining something almost surreal: an American President, allegedly leading a murder attempt on American democracy. Did it really happen at his hands?
The evidence the Committee aired was remarkable. It had assembled an incredibly strong case — a bulletproof one, really — of mens rea. Meaning that the President knew he’d lost the election, didn’t much care, and then pressed the button on January 6th precisely to try and thwart the peaceful transfer of power. This was no accident, the Committee said: it was a potential case of premeditated murder. An attempt at it, anyways.
“The committee also shared an email from Tom Fitton, head of the conservative group Judicial Watch, to White House aides Dan Scavino and Molly Michael. The email was dated Oct. 31 — days before Election Day — and featured the words ‘We had an election today — and I won.’ It suggested that Trump should claim that the ballots ‘counted by the Election Day deadline’ showed he had won.
In a follow-up email, from Nov. 3, Fitton indicated he had spoken with Trump about the matter: ‘Just talked to him about the draft below.’”
How damning is that? By Oct 31 — well before the election — the President apparently was in on a plan to declare himself the victor even if he lost.
Then there was more from Cassidy Hutchinson, the former aide, who “added that, at another point, Meadows told her of Trump: ‘He knows it’s over. He knows he lost. But we’re going to keep trying. There’s some good options out there.’”
The point? “Claims that President Trump actually thought the election was stolen are not supported by fact and are not a defense,” Cheney said. “There is no defense that Donald Trump was duped or irrational.”
That part’s crucial. Trump knew the election wasn’t stolen. All the machinations to try and “take it back” were merely instrumental. Mens rea. He wasn’t crazy, he wasn’t stupid, he wasn’t misinformed. Not a defense. He knew exactly what he was doing. Premeditation.
I can keep going, but it’s worth watching for yourself if you haven’t. There’s no need for me to rewrite all that testimony here.
That brings us to the dramatic, unexpected ending of the hearing. The Committee members voted, in public, to subpoena the President. And they did it on camera precisely because — to paraphrase — they thought this matter was so crucial to a democracy they wanted to vote in the public eye, to show freedom from any interference. Subpoenaing a President is a big, big step.
Now, Trump’s probably not going to testify. If he does, he’ll just plead the Fifth, like so many of his odious ilk. But again, all this is about the point of the Committee’s work — the criminal referral, or not. It’s basically saying to Trump: this is where the evidence has taken us. And it confirms what your worst critics were saying — that this really was a hard coup, which followed numerous attempts at a soft coup, it was hardly a mere riot, instead it was made of armed paramilitaries. And you seem to have attempted to create it.
By telling them a Big Lie that you knew was a Big Lie — the election was stolen. Thus setting in motion a chain reaction of violence. Repeating the Big Lie, over and over, even though you admitted in private you’d lost, even though you knew you’d lost. The violence was created by you. Then directed by you. It was used by you, just a like a gun aimed at the heart of democracy. You pulled the trigger because you meant it — and nobody else pulled it but you. You’d thought it through — and you attempted this murder, knowing full well what you were doing.
See what all that does? Like Liz Cheney said, it rules out all kinds of defenses — ignorance, incompetence, negligence, an accident. And that, in turn, is what a genuinely powerful criminal referral has to be about, and to have a criminal referral at all, since this is a grave matter, concerning a President, it has to be powerful, beyond a shadow of a doubt. The Committee is doing its work carefully, but with incredible care and grace and concern. And it is setting the stage for a damning criminal referral.
Last night, the Committee made the case — an incredibly powerful one — that this was a premeditated murder attempt on…democracy itself. And that, it appears to be saying, will make us have to send a criminal referral onwards. Because while a President might have been able to plead many things — ignorance, negligence, the heat of the moment — and still get away with it, given the pressures and strains of such a position, this goes well beyond that. To the place where the law itself can’t be made to bend one iota of an inch. The place where democracy is, or isn’t. If you can’t try a case of attempted murder on democracy itself — premeditated, planned, calculated — by a President who used fanatics and lunatics as surely as a killer uses a gun…then what good is the word “democracy” at all?
Last night might not have seemed like it. But it was a triumph for American democracy. And more than that, a triumph of American democracy. Nations in which former heads of state can be brought to account this way, in public, through careful deliberation and bipartisan investigation, with painstakingly assembled evidence? They’re vanishingly rare. The Committee shows us that America still is one — a democracy of that grandeur and scale, despite all its flaws and problems and challenges.
We all know what’s coming next now, because this hearing left little doubt. A criminal referral, of historic proportions. We will see if American democracy is up to that challenge, too. For now, though let us take a moment to reflect on all the above, thank the Committee, and if not celebrate, then at least breathe a sigh of relief, that at least American democracy has some fire and might and truth left in it — especially in a world like this, going backwards at light speed. Last night wasn’t quite a turning point for American democracy, yet. But it might just have been crossing the final crucial miles before one.