What the House Select Committee on the January 6 Attack has not done is as important as what it has. Its thorough investigation revealed despicable conduct by former President Trump, but it has failed to find “smoking gun” evidence that he committed a crime.
That phrase will forever be associated with the Watergate investigation of President Nixon. What became known as the “smoking gun tape” emerged in August 1974 during impeachment proceedings against Nixon in the House of Representatives over the break-in at the Democratic National Committee headquarters in Washington’s Watergate Hotel.
The tape recorded an Oval Office conversation six days after the break-in in which Nixon and his chief of staff, H.R. Haldeman, discussed the FBI’s investigation into whether the break-in was “a White House operation.” They devised a plan to instruct top CIA officials to tell the FBI, in Nixon’s words, “’Don’t go any further into this case — period!’”
The tape so unequivocally established a conspiracy to obstruct justice that the 10 Republicans on the House Judiciary Committee who had recently voted against impeachment changed their votes. Days after the tape’s release, Nixon resigned rather than face certain impeachment by the House and conviction in the Senate. He avoided indictment only because President Ford pardoned him.
The equivalent evidence in the Jan. 6 investigation would be a tape recording or a credible eyewitness account of Trump, Rudolph Giuliani and Steve Bannon discussing how Trump should use his Ellipse speech on Jan. 6 to make the crowd so angry that it would storm the Capitol as soon as it heard the instruction “We are going to walk to the Capitol.” Nothing like that has been found.
Without smoking gun evidence, Attorney General Merrick Garland and his aides face a difficult decision. The existing evidence that Trump intentionally incited a riot to stop the electoral vote count might be sufficient to persuade a judge to let the prosecution’s case go to a jury. But whether the evidence is strong enough to convict is an open question.
The defense will argue that Trump’s Ellipse speech and later tweets on Jan. 6 never urged violence and that when the president told the crowd to “fight like hell,” he was only exercising his First Amendment rights and using typical political rhetoric, like Joe Biden when he tweeted during the 2020 campaign that “I will continue to fight — like hell.” Biden’s tweet was only about fighting for working class families, and wasn’t made to an armed mob, but that’s what defense attorneys do in a criminal trial.
Trump’s more than three hours of inaction during the riot, followed by his videotaped statement telling the rioters “we love you,” convincingly demonstrates his approval of the riot and the rioters. But since presidential dereliction of duty is not a federal crime, the jury would still have to decide whether to infer from his inaction that, in his Ellipse speech hours earlier, Trump intended to and did incite the riot. How that comes out is anyone’s guess.
But wasn’t Trump’s behavior just so God-awful that any jury would surely convict? It certainly was that, but the criminal justice system is so focused on the elements of a crime, such as intent and causation, that God-awfulness won’t convict if the prosecution lacks beyond-a-doubt proof of those elements.
Most people fail to appreciate how hard it is to persuade all 12 jurors beyond a reasonable doubt – the most exacting legal standard in all American law – to convict a typical defendant.
And Trump would not be a typical defendant because no former president has ever been indicted, let alone by the administration of the opposing political party. A Trump prosecution needs smoking gun-type evidence because an indictment could tear the country further apart, and an acquittal even more. This isn’t a double standard for former presidents but a recognition that prosecutorial discretion must take into account the unique nature of the presidency.
That’s why it’s significant that the Jan. 6 committee so far has failed to find a smoking gun.
Gregory J. Wallance, a writer in New York City, was a federal prosecutor in the Carter and Reagan administrations, where he was a member of the ABSCAM prosecution team that convicted a U.S. senator and six representatives of bribery. He is working on a book about a 19th century American journalist who investigated the Siberian exile system. Follow him on Twitter @gregorywallance.