In my opinion, the entire Jan. 6th investigation comes down to this one piece of evidence.

[chowder66]

6. You might enjoy this article: Prosecuting Trump for the insurrection

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One of those prongs was a campaign by Trump to persuade various federal and state officials to take actions aimed at undoing Biden’s win and allowing Trump to remain in office. This included the former president’s efforts (beginning before votes were cast) to claim the election was fraudulent; to coerce Georgia Secretary of State Brad Raffensperger to “find 11,780 votes, which is one more than we have” in order to overturn the result in Georgia; to convince DOJ officials to “just say the election was corrupt and leave the rest to me;” and, of course, to harangue Vice President Pence into setting aside his legal duties as President of the Senate under the Electoral Count Act based on Eastman’s scheme – which Eastman himself admitted was so clearly unlawful that it would be rejected by all nine Supreme Court justices. An obstruction charge based on this prong would most likely focus on the pressuring of Pence in his role as a legislative officer, with the other actions serving as evidence of Trump’s overall malign intent. We know that Trump was repeatedly told by the Attorney General and others that his election fraud claims were unfounded, and that he was surely aware of the more than 60 court decisions rejecting all such claims. Key evidence still to be uncovered (or publicly revealed) includes whether Trump was privy to Eastman’s own views of the meritlessness of his claim that Pence could legally refuse to certify the election.

The second prong was the storming of the Capitol by a violent mob aimed at physically disrupting the constitutionally mandated proceeding to formalize the election results. Trump’s relationship to that mob remains a subject of investigation by the Select Committee, litigants in several civil lawsuits (disclosure: I and my organization Protect Democracy are co-counsel in one of those cases), and likely the DOJ, but we already know that Trump weaponized the mob to pressure Pence. We know that members of the mob, including militia leaders who have been charged with coordinating efforts to storm the Capitol, were drawn to Washington, D.C., by Trump’s lies about election fraud and his Dec. 19, 2020, tweet calling for his supporters to assemble for a rally on January 6 that “will be wild.” We know that many of the rioters breached the Capitol intending to stop Pence from counting the electoral votes. We know that militia leaders who planned the breach of the Capitol had close ties to Trump consigliere Roger Stone. We also know that Trump addressed a large crowd at the White House Ellipse that ended just after the electoral count proceeding began at 1 pm, and after Pence informed Trump that he would not go along with his unlawful scheme to reject certain states’ votes. Trump exhorted the crowd to go with him to the Capitol and “fight like hell” to get Pence to “do the right thing.”

Later, twenty minutes after he was told by his Chief of Staff that the mob was inside the Capitol, he poured gasoline on the fire by tweeting: “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.” He then proceeded for a period of several hours to ignore multiple pleas to call off the mob from lawmakers inside the Capitol and his own aides, who evidently believed that the mob was taking instruction from him. At 3:13 p.m. Trump tweeted for the crowd to “stay peaceful,” but pointedly did not call on them to leave the Capitol so the proceedings could resume. Instead, Trump, Rudy Giuliani, and Eastman continued to attempt to persuade lawmakers to delay the counting of the votes. The mob’s efforts succeeded in delaying certification of Biden’s win until 3:42 am on January 7. The continuing investigations will likely focus on what Trump knew about the prospect of militias breaching the Capitol, pressuring Pence, and delaying the certification and what his intentions were when he addressed the crowd at the Ellipse and afterwards in failing to call them off. It is worth noting in this regard that Judge Amit Mehta, who is overseeing DOJ’s cases against Stewart Rhodes and other members of the Oath Keepers, has held that the well-pleaded facts set forth in complaints on behalf of several members of Congress and Capitol Police officers plausibly establish a conspiracy between Trump and those who stormed the Capitol. While the plausibility standard is obviously lower than reasonable doubt, that decision illustrates how a court has already assessed Trump’s use of the mob to orchestrate interference with the electoral count proceeding.

It is possible that the DOJ could elect to charge Trump with obstruction based solely on his own (and Eastman’s) efforts to pressure Pence to ignore his legal duties. A lead DOJ prosecutor verified the viability of that theory during a pretrial hearing for one of the Jan. 6 defendants. And DC courts have held that inducing another person to violate a legal duty in relation to an official proceeding meets the definition of acting with an unlawful purpose. Former United States Attorney Barbara McQuade has explained in detail how a prosecution that does not include Trump’s connection to the mob could be carried out.

https://www.justsecurity.org/81597/prosecuting-trump-for-the-insurrection-the-well-founded-case-for-optimism/