A Trump indictment would be ‘very tough’ to get legally

OPINION:

With only one scheduled hearing remaining, the House’s Jan. 6 committee this week held a long-awaited hearing on the critical linkage between former President Donald Trump and his aides to extremist groups like the Proud Boys and the Oath Keepers.

At the start of these hearings, committee members said there was evidence of a criminal conspiracy to overturn the 2020 presidential election through an insurrection on Capitol Hill.

Committee member Rep. Adam Schiff, California Democrat, has insisted there is “ample evidence” to support criminal charges. His colleague, Rep. Jamie Raskin, Maryland Democrat, said the committee would show that Trump organized a “coup” on Jan. 6, 2021.

To establish a criminal conspiracy, the committee maintained that Mr. Trump and others in the White House colluded with groups like the Oath Keepers, who were to be the insurrection’s foot soldiers.

The hearings have succeeded in bringing to light much of what occurred in those critical days. The testimony has detailed extremely reckless conduct and chilling proposals, but it has not established a clear criminal conspiracy. Indeed, much of the evidence has amplified what we already knew, rather than adding significant new information on criminal conduct. If the committee is serious about such a referral to the Justice Department, it will have to make a quantum leap in evidence. Even former prosecutor and Democratic Sen. Heidi Heitkamp said that the seventh hearing showed a Trump indictment would be “very tough” to get legally.

Specifically, the committee must produce direct, unassailable evidence, not circumstantial evidence based on “will be wild” tweets or an anonymous former Twitter employee’s testimony that “It felt as if a mob was being organized.”

The seventh hearing spent a considerable amount of time on actions not taken by Mr. Trump — a curious way to build a criminal case. There was the draft tweet that was not sent and the executive order that was never signed.

We did hear from witnesses from right-wing groups involved in the attack on the Capitol. The testimony was disturbing but not particularly probative of a criminal case. One was Jason Van Tatenhove, a former Oath Keepers spokesperson who quit the group years before the riot and had no involvement in any planning or protest on that day. The other was Stephen Ayres, who illegally entered the Capitol on Jan. 6 and later pleaded guilty to a federal charge of disorderly conduct. Both offered insights into the extremism of these groups but not clear criminal linkages to Trump.

The committee is now faced with an unexpected and rather bizarre offer from Oath Keepers founder Stewart Rhodes. Indeed, I cannot recall any situation quite like this one.

Despite being indicted for seditious conspiracy and facing up to 20 years in prison, he said he is willing to testify on his actions related to Jan. 6 on the condition that he does so in public, to avoid having his words edited or distorted.

The risks for Mr. Rhodes are enormous, and few defense attorneys would support such an offer. A Yale Law graduate, Mr. Rhodes knows he could not only incriminate himself on pending charges but could trigger additional charges for perjury or other crimes. It would effectively negate his right to remain silent at trial, since any committee testimony could be used at trial. It would give prosecutors not only an extensive examination of Mr. Rhodes free of limiting rules of evidence but it would expose Mr. Rhodes for any contradictions if he decides (as seems more likely given this offer) to testify at his trial.

For the committee, the potential risk of Mr. Rhodes testifying would be the loss of control and the possibility that Mr. Rhodes could hijack a hearing with extraneous, sensational or hateful statements. I can understand the reluctance to hold an open hearing. However, if Mr. Rhodes went rogue, the committee could always end the hearing.

What the committee would gain would be the examination of a key witness who would, presumably, know of any conspiracy or collusion.

It is no easy decision and there are understandable reasons to be leery of the offer. Yet, the committee has been criticized by some for its one-sided presentations of evidence that has made these hearings more exercises in persuasion than investigation. The limited public witnesses are shown snippets of their own testimony or that of other witnesses before being narrowly questioned by the committee; there are no dissenting or opposing views, including alternative explanations for key facts or statements.

The question now is whether the committee is serious about establishing a criminal case against Mr. Trump and willing to take a risk — and this surprising offer. It has a witness who may be able to confirm or refute core allegations — but that will require an unscripted, unpredictable public hearing.

The committee has already laid the foundation for such an examination and has a long list of subjects. It could ask Mr. Rhodes about photographs with Trump associates or the storage of a weapons cache; it could secure sworn testimony on any coordination with the Proud Boys and other extreme groups.

Mr. Rhodes has maintained he believed that Mr. Trump would activate the Insurrection Act, and came prepared to be made part of a lawful militia. Witnesses have said Mr. Rhodes wanted Mr. Trump to deputize citizens under the act but lacked contacts or “access points” in the White House. The committee would be able to ask him if anyone in the Trump campaign (or Mr. Trump himself) offered assurances or encouragement in that bizarre belief.

This is an opportunity to examine an alleged core conspirator in a no-holds-barred format. There are risks all around, of course, but the greatest risks would fall on Mr. Rhodes. The committee should take him up on his offer.

• Jonathan Turley is the Shapiro professor of public interest law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of former President Donald Trump.