The
Clearest Evidence Yet of Donald Trump’s Criminal Intent on Jan. 6
MARCH 29, 20224:10 PM
On Tuesday, Bob Woodward and Robert Costa reported in the Washington Post that the
House select committee investigating Jan. 6 has the White House presidential
phone log, and it shows a seven-hour gap in the record of his communications
that fateful day.
The gap’s importance is difficult to exaggerate. The
evidence of former President Donald Trump’s criminal intent with regard to his
efforts to overturn the 2020 election is building, day by day, so relentlessly
that at this point, a failure to prosecute becomes tantamount to a negation of
the rule of law’s first principle—that no person “stand[s] above the law.”
Why is the gap so significant? If, as some analysts
have hypothesized, Trump is so detached from the
factual world that he actually believed his own Big Lie that the 2020 election
was marred by fraud, that would make conviction for trying to steal the
election difficult. Under this analysis, he would not have thought he was
acting “wrongfully,” a necessary element for conviction on the charges to which
he is most vulnerable.
Hiding one’s calls and conduct on Jan. 6, 2021, as it
appears Trump did, rebuts his potential defense that he thought he was acting
righteously. People who believe that their behavior is law-abiding do not cover
it up in this way.
Let’s look at the facts and the law the way any Justice
Department prosecutor—including Attorney General Merrick Garland—ordinarily
would.
The seven-hour gap ran from 11:17 a.m. to 6:54 p.m. During
the gap period, we know from reporting about a call that the then-president mistakenly made
to Sen. Mike Lee—trying to reach Sen. Tommy Tuberville. Lee handed
his phone to Tuberville, with whom Trump spoke for five to 10 minutes. During
that call, Capitol police instructed them to evacuate the Senate chambers
because insurrectionists had breached the Capitol.
We also know of a phone conversation he had with House
Minority Leader Kevin McCarthy and of another with Vice President Mike Pence
during the gap period. Pence continued to rebuff Trump’s pressure not to allow
the certification of Joe Biden’s Electoral College victory.
None of these calls appears on the logs.
In addition, Rudy Giuliani, John Eastman, and Steve Bannon
were reportedly huddled on Jan. 6 in a de facto “command center” at the five-star Willard Hotel in
D.C. Trump spoke to them before the log gap, and it
strains credulity to believe he did not talk with them again during the many
hours when calls were not recorded. Any prosecutor would subpoena the phone
company records listing those individuals’ calls that day and the numbers to
and from which those calls were made.
Now let’s look at the law. I’m a former federal prosecutor,
and one of my favorite jury instructions, when the evidence against a
white-collar criminal supported it, covered consciousness of guilt: “If you believe that [the
defendant sought to conceal evidence], then you may consider this conduct,
along with all the other evidence, in deciding whether … [he/she] thought
[he/she] was guilty of the crime charged and was trying to avoid punishment.”
Using alternate means of communication over five or six
hours, including others’ phones or potentially “burner phones,” to avoid calls
being logged would justify such an instruction.
Importantly, such a subterfuge would also circumvent a legal
obligation, adding to the evidence of corrupt intent. Under the Presidential Record Act, the president has a duty
to “take all such steps as may be necessary to assure that the activities,
deliberations, decisions, and policies that reflect the performance of the
President’s … official or ceremonial duties are adequately documented.” On Jan.
6, Trump did not.
In apparent response to the Washington Post story, Trump has
denied using a “burner phone” of the kind that his allies bought with untraceable cash and used that
day. Tellingly, however, there is no report that Trump denied using others’
phones.
On CNN on Tuesday, Bob Woodward told John King that he got
to know Trump very well during his many hours interviewing him during the 2020
campaign, and that Trump is a phone “addict.” Woodward said that the notion
Trump stopped using the phone during the multi-hour gap period was as unlikely
as “the sun not rising” tomorrow.
The Post’s report about the length of the gap in White House
records adds significantly to the already overwhelming evidence of Trump’s criminal intent.
Indeed, just on Monday, in a 44-page opinion, a federal court found it “more
likely than not” that Trump and John Eastman “corruptly attempted to obstruct
the Joint Session of Congress on January 6, 2021,” and with deceitful intent
conspired to defraud the United States.
For his part, Judge David O. Carter explicitly addressed the
matter of Trump’s likely knowledge of wrongdoing, writing “this evidence
demonstrates that President Trump likely knew the electoral count plan had no
factual justification.”
Pointedly, Carter concluded, “If Dr. Eastman and President
Trump’s plan had worked, it would have permanently ended the peaceful
transition of power, undermining American democracy and the Constitution.”
In 1973, Richard Nixon’s investigators learned of an 18.5-minute “gap” in White House tape
recordings during the Watergate cover-up. Trump’s gap in his phone logs is more
than 400 minutes. The numerical comparison, however, is the least of it. Nixon
was covering up a “third-rate burglary” of Democratic Party
headquarters at D.C.’s Watergate complex. Trump looks to have been covering up
an attempted coup d’état.
To be sure, what took Nixon down was actual White
House tapes. If Garland is waiting for that kind of smoking gun, he
is sending an unmistakable signal that Trump, even in apparently conspiring to
end American democracy, is above the law.