HE VIEW FROM HERE - At the conclusion of the Tuesday, June 20, 2022 January 6th Committee’s presentation, Co-chairperson Rep. Liz Cheney (R-WY) called out Trump White House Counsel Pat Cipollone to testify live before the cameras.
The White House Counsel is not the President’s personal attorney, which complicates the attorney-client privilege. Cipollone’s client is the Office of the Presidency, making statements and/or actions taken by the President which are directly contrary to his oath of office beyond any confidentiality which Cipollone may assert.
The Watergate phrase, “What did the President know and when did he know it?” plagues the January 6 House Committee. Proof beyond a reasonable doubt requires more than supposition. A defendant’s express admission, however, is considered the strongest evidence. Despite the fact that criminal charges will have to be brought by the Department of Justice, Donald J Trump is the de facto defendant in the Committee’s hearings. Back in January 2021 during the Senate impeachment trial, House Speaker Nancy Pelosi (D-CA) blew that opportunity to bar Trump from holding public office in the future by not allowing the House Managers to call any witnesses about Trump’s inciting them to insurrection. Many insurrectionists, e.g., The Proud Boys, had wanted to testify against Trump. Proving incitement is easier than the task which the January 6th Committee has set for itself – to prove that Trump orchestrated the insurrection.
Incitement can be as simple as urging people to engage in immediate violence. Those people who were enticed to violence are crucial witnesses to prove that Trump’s prior tweets and his January 6th speech incited them. Trump’s behavior on January 6th satisfied the rule than free speech does not allow one to shout fire in crowded theater.
“Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444 (1969)
The crucial facts at the January 2021 Senate Impeachment trial were Trump’s rally and speech directing people go to the Capitol to stop the certification of the election results. He promised to go with them. Trump need not know the specific action they would take. It is sufficient that the average reasonable person would have foreseen that many people listening would take immediate and violent action. Trump expressly dispatched the riled up crowd to the Capitol where the election certification was to take place. Had Trump not intended violence, he would immediately have ordered re-enforcements for the Capitol when he saw the riot on TV. Instead, he was gleeful at the violence. He remarked that hanging Mike Pence was “the right idea.” As had happened in December 2019 House Impeachment Hearings, Speaker Pelosi did not allow the House Managers in the January 2021 Senate Trial to put on the vital evidence by the incitees, leaving the Senators no choice but to again acquit.
Now, the January 6th Committee Has a Harder Row to Hoe
It is attempting to prove beyond a reasonable doubt that Trump orchestrated extensive efforts to overthrow the US government and that the violent attack on the Capitol was his last ditch effort.
How Does One Assess What a Mentally Ill Person Knows?
Here, the elephant is not in the middle of the living room but is lurking behind the draperies. Although one is not supposed to mention it, Trump suffers from two personality disorders: Histrionic (DSM-5 301.50) and Narcissistic (DSM-5 301.81). When one understands the extent to which his being a narcissistic Histrionic interferes with Trump’s intellectual faculties, it is hard to ascertain what he actually “knows.” One need not place credence in the DSM (Diagnostic and Statistical Manual of Mental Disorders) to know that some people are impervious to facts. For them, belief trumps reality.
The fact that many people told Trump that California attorney John Eastman’s advice was F-ing crazy does not mean that Trump believed them. Did Trump actually believe that the election had been stolen? Trump’s personality very well could prevent him from admitting that the people did not love him. Anyone who would crop a photo of his inaugural crowd and show it on 60 Minutes to prove that his crowd was larger than Obama’s is missing some mental faculties. Only a person with a disorder would not instantly realize that the entire world would see that he had doctored the photo. Later, in 2019 when he was criticized for predicting that Hurricane Dorian would hit Alabama, Trump used a black marker to alter the official weather map to make it appear as if Alabama was a likely target. Again, such behavior cast serious doubt on Trump’s mental faculties. Sane, but dishonest, also people fabricate evidence. When it is done in such a transparently false manner, there is something seriously amiss with the person’s reality assessment.
Are Trump’s efforts to have various state election officials find pro-Trump ballots intentional wrongdoing or are they his good faith efforts to prove the veracity of his sincerely held belief that he won the election? In order to convict Trump of incitement in a Senate impeachment trial, Trump’s subjective motive is not relevant. It is an objective standard. Trump had been advised by law enforcement that the Alt Right were highly violence prone. In addition, he knew about the death of Heather Heyer in Charlottesville in 2017, and he knew it had resulted in the murders at Tree of Life / Or L’Simcha synagogue on October 27, 2018. Thus, an average reasonable man would have foreseen that his January 6th speech to go to the Capitol would result in violence.
Now, however, the January 6th Committee has to prove that Trump intellectually knew that he had lost the election and that the path laid out by attorney John Eastman was unconstitutional. Pat Cipollone may have heard direct admissions from Trump, establishing beyond a reasonable doubt that Trump knew that he had lost the election and that his behavior was criminal.
It is doubtful that the case against Trump becomes stronger if Cipollone merely testifies that he and his staff threatened to quit if Trump removed acting Attorney General Jeffrey Rosen so he could appoint Jeffrey Clark who was willing to pressure Georgia election officials to find non-existent ballots. Trump might believe that Cipollone and his staff were part of the Deep State which was out to dethrone him. The Committee needs direct testimony that Trump, in fact, knew that he had lost the election and that he understood that his actions to find additional votes were illegal and subverted the Constitution.
As if this writing, one does not know if Pat Cipollone will testify, and if so, the content of his testimony.
(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor. You may email him at [email protected])