So far, hundreds of people have been indicted for their roles in the January 6th Capitol Riots. Many more have been called before a U.S. House Select Committee that was formed in July of this year. The attack on the Capitol, just as Congress was certifying the results of the 2020 election, erupted from attempts to overturn the election results amid dubious allegations that the presidency had been stolen. According to a poll conducted in July 2021 by Politico, a majority of Americans support the January 6 investigation, with 58% overall supporting and 29% opposing.
To date just four witnesses, all policemen, have testified in public. Notably absent from the government’s scrutiny is the chief architect of the “rigged” election theory, who also egged the rioters on to the Capitol in a fiery speech that fateful day: Donald J. Trump.
While the Committee’s chairman has told reporters that he plans to investigate Trump, the former president has not been subpoenaed. Instead, the Committee has sought to determine whether the White House was involved in planning the Capitol attack and, if so, how culpable Trump might be for the violence and lawlessness that occurred. Former chief of staff Mike Meadows, however, recently announced that he will not testify and sued the Committee lest he be held in contempt. Many of the Committees’ document requests have been challenged by an executive privilege lawsuit that may go all the way to the Supreme Court.
Does this mean that Trump is legally out of the woods? Not according to Kevin J. O’Brien, former Assistant US Attorney for the Department of Justice, New York City Super Lawyer, and founding partner of litigation firm Ford O’Brien LLP in New York City, who specializes in white-collar criminal law and political corruption matters.
“Contrary to what we often hear, prosecuting Trump for inciting insurrection or hindering by force the execution of our laws is within reach,” O’Brien said. “In fact, based solely on the public record, without knowing what the January 6th Commission is learning confidentially from insiders and subpoenaed records, the outlines of the case against Trump are becoming clear.”
While Congress lacks the power to indict, it can issue referrals to the Department of Justice, as it did earlier this month when it alleged that former White House advisor Steve Bannon was in contempt. Bannon was ultimately indicted.
“It would not take much to make Trump a legitimate target in any criminal investigation of the events of January 6th,” O’Brien said. “The principal question is whether Trump’s repeated attempts to pressure Vice President Mike Pence [responsible under the Constitution with presiding over the Electoral College vote count] by turning the boisterous crowd against him created an ‘imminent’ threat of violence or unlawful conduct, chargeable as criminal incitement, or was nothing more than free speech.”
The most telling fact to emerge so far, according to O’Brien, is that having worked up the crowd against Pence by name, Trump watched on television for nearly three hours as the violence at the Capitol unfolded, which at one point came dangerously close to the Vice President and his family. During this time, aides have told reporters, Trump seemed pleased, not disturbed, that his supporters were disrupting the vote count. Not until the late afternoon did the President finally tell the mob to go home.
O’Brien believes that Trump’s behavior on January 6 was criminal, in that he welcomed and encouraged intimidation and violence as a means to prevent a proper Electoral College vote count. “The evidence for these conclusions, like the evidence in any complex criminal case where knowledge and intent are the issue, is sometimes circumstantial and based on inferences,” he said. “But it is no less solid for that.”
As featured on Westlaw Today and Reuters Legal, Kevin J. O’Brien is a seasoned trial lawyer and partner at Ford O’Brien, LLP, based in New York City. He is a former Assistant US Attorney for the Department of Justice and specializes in white-collar criminal defense, commercial and securities litigation on behalf of plaintiffs and defendants, regulatory enforcement cases, and arbitrations. He has tried over 25 court cases and numerous arbitrations to verdict.