In six televised hearings, the House January 6 committee has presented extraordinary testimony about Donald Trump’s attempt to overturn the 2020 election and its culmination, the deadly attack on the US Capitol by a far-right mob.
The committee is made up of seven Democrats and two rebel Republicans, Adam Kinzinger and Liz Cheney, who refused to follow their party in bending the knee to Trump.
Set free of bipartisan considerations when the House Republican leader, Kevin McCarthy, withdrew cooperation, the panel has been able to act in a purely prosecutorial manner. It has also worked on how to present its findings, using TV industry expertise to present hearings honed, contained and aimed at convincing the American people Trump should never be president again.
The committee cannot charge Trump with a crime. But the US Department of Justice can, a possibility that has stoked intense speculation in Washington and the world.
Here are the key legal issues at stake:
Can the committee make criminal referrals?
Yes. It has done so in the cases of Steve Bannon, Peter Navarro, Mark Meadows and Dan Scavino, Trump aides who refused to cooperate. Pleading not guilty to criminal contempt of Congress, Bannon and Navarro face time in prison. The DoJ declined to charge Scavino and Meadows.
Will the committee refer Trump?
The chair, Bennie Thompson of Mississippi, has said he does not expect to do so. However, that statement prompted reports of disagreement on the panel and also came before Cheney, the vice-chair, revealed possible attempts to intimidate witnesses.
On Wednesday, CNN asked a committee member, Pete Aguilar of California, if he believed witness tampering had occurred.
“Yes, I do,” he said. “I think that that’s something that should be looked at by our committee and potentially by the Department of Justice.”
Asked if a referral had been made, Aguilar said: “I’m not going to talk about the investigative steps we have taken. But what I will say is I think that those statements speak for themselves [as evidence of] … dangerous behavior.”
One of the witness statements which Cheney read on Tuesday was reportedly made by Cassidy Hutchinson, a former close aide to Trump and Meadows who testified for two dramatic hours.
Could the DoJ charge Trump?
The committee has turned up extensive evidence that suggests a case could be made.
Hutchinson appeared to draw Trump closer to strong links with extremist groups which attacked the Capitol, saying she recalled “hearing the word ‘Oath Keeper’ and hearing the word ‘Proud Boys’ closer to the planning of the January 6 rally, when Mr Giuliani would be around” the White House.
Rudy Giuliani was Trump’s personal attorney. Among more than 870 people charged over the Capitol attack, members of the Oath Keepers and Proud Boys have been charged with seditious conspiracy.
But to many, one passage in Hutchinson’s testimony seemed to draw Trump the closest yet to demonstrable criminal conduct.
Hutchinson said Trump knew the crowd for his speech near the White House on 6 January 2021 contained armed individuals, some with AR-15 rifles and handguns, but still told his audience to march on the Capitol and “fight like hell” to stop certification of election results. Trump told the crowd he would march with them and, according to Secret Service witnesses, was furious to be denied.
David French, senior editor at the Dispatch and the author of Divided We Fall: America’s Secession Threat and How to Restore Our Nation, wrote: “Hutchinson’s sworn testimony closes a gap in the criminal case against Trump, and Trump is closer to a credible prosecution than ever before.”
As French described, Trump’s actions on and around January 6 appear to meet standards for prosecution set in a 1969 supreme court case, Brandenburg v Ohio, which involved a leader of the Ku Klux Klan.
Then, the court “overturned Brandenburg’s conviction, holding that even speech that threatened violence or disorder was protected by the first amendment unless ‘such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’”.
French wrote: “Note the elements of intentionality, likelihood and imminence. The imminence element is easiest to satisfy. The mob was right there. It marched to the Capitol right away, even as Trump was speaking. But what about intentionality and likelihood?”