Cheney hints: We're building a case that Trump committed a federal crime on January 6

Everyone’s understandably focused today on how Cheney embarrassed Trump Jr and the Fox News gang by reading their texts to Trump on January 6. Ed has a nice write-up about it here. But don’t miss the forest for the trees. The point Cheney was making isn’t that Fox News hosts are hypocrites, although they are. The point is that the president’s own family and allies were pleading with him while the riot was unfolding to do something, yet he did nothing — for hours. Everyone around him treated it like an emergency. Not him.

Was that a crime?

Watch the end of this clip, starting at around 3:00. Trump may or may not have expected that the rally he held on the morning of January 6 would lead to a riot. The committee’s digging into that. What Cheney’s suggesting here, though, is something more akin to being an accessory after the fact. Even if Trump didn’t intend to incite a riot, did he sit on his hands in the Oval Office while it played out in the expectation that the violence might prevent Congress from ratifying Biden’s victory?

Jose Pagliery notes that Cheney’s words there are carefully chosen. 18 U.S. Code § 1505 – Obstruction of proceedings before departments, agencies, and committees:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

One of the strategies listed in the PowerPoint on how to overturn the election that was found in Mark Meadows’s emails involved creating a “delay” in the certification process so that “legal paper ballots” at the state level could be vetted and counted. Another was to “Declare National Security Emergency,” a pretext for extraordinary presidential action. Trump might have been sitting in his office watching the riot on television mulling those possibilities. If the mob prevented Congress from acting, and if the violence spread, he could have used that as an excuse to declare an emergency and try to cling to power unlawfully. Which sounds like “corruptly” impeding the due and proper administration of the law by Congress.

That’s why the committee is so focused on Meadows’s texts and other communications from the White House that day. They’re looking for evidence that Trump supported the riot after it began in hopes of disrupting the certification of Biden’s win.

And as I say, they’re also looking for evidence that he had an inkling beforehand of what might happen. His tweets from the evening of January 5 as supporters gathered for the next day’s rally mention the size of the expected crowd and how “they won’t take it anymore” and “won’t stand for a landslide election victory to be stolen”:

Washington is being inundated with people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore! We hear you (and love you) from the Oval Office. MAKE AMERICA GREAT AGAIN!

I hope the Democrats, and even more importantly, the weak and ineffective RINO section of the Republican Party, are looking at the thousands of people pouring into D.C. They won’t stand for a landslide election victory to be stolen. @senatemajldr @JohnCornyn @SenJohnThune

His infamous tweets from the afternoon of January 6, while the insurrection was happening, suggest indifference at best and encouragement at worst:

Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

After that, as things spiraled and more of his inner circle screamed at him to do something, he tweeted twice that rioters should stay peaceful. At some point while the Capitol was overrun, though, he reportedly spoke to Kevin McCarthy by phone and responded to McCarthy’s plea for help by saying, “Well, Kevin, I guess these people are more upset about the election than you are.” Then, hours later, he dropped this “you had it coming” jab at Congress:

These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!

Trump may not have planned the insurrection but did he abet it once it began by not sending the National Guard to rescue Congress? That’s the issue for purposes of Section 1505. Although color me skeptical that Merrick Garland is going to charge a former president who’s eyeing another run in 2024 with a crime knowing the political ramifications of doing so unless the case is unimpeachable. If the committee can find witnesses inside the White House willing to testify that Trump explicitly spoke about letting the riot play out to keep Congress from getting back to business, they’ve got something. But short of that? Seems unlikely.

As for the spectacle of Fox primetime begging Trump by text that day to intervene, I think Amanda Carpenter identifies why there’s so much buzz around it this morning. “No matter what they say now, Trump’s loyalists knew at the time that what was happening at the Capitol was not a peaceful protest. They knew that it was a dangerous attack on American democracy. And they knew that Trump was responsible for it.” Trump’s own confidants believed he had the power to repel or at least discourage the mob, yet that power went unexercised for hours. Their unanswered pleas suggest that they too believed he was complicit, by inaction if not by action. It’s not just the hypocrisy of their commentary ever since about how dire the attack was and who was to blame for it that makes it newsworthy.

Although it’s partly the hypocrisy:

Hannity had Mark Meadows on his show *last night*, after the committee voted to refer Meadows for a contempt charge for not complying with it, yet neglected to mention the text that Hannity himself sent to Meadows on January 6 which Cheney had read on national television hours before. The rule in populist media, as always, is to not get on the wrong side of your audience, even if it means ignoring news in which you and your guest are directly implicated. Hannity and his colleagues told the truth to Trump while the insurrection was playing out — that it was a horrendous disgrace, just as Liz Cheney has spent the past 11 months saying — and yet on TV they’ve downplayed it and demagogued Cheney for being as bothered by it as they were privately. No wonder Cheney couldn’t resist highlighting their appeals to Trump.

Here’s Cheney this morning reminding Congress that it isn’t just Fox News hosts whose opinions about January 6 have conveniently shifted since that day to avoid alienating MAGA fans.