Every Crime Imaginable

“We’re going to charged with every crime imaginable”

— White House Counsel Pat Cipollone on Trump’s plans for Jan. 6

Former White House aide Cassidy Hutchinson may have changed the course of history with her damning testimony about the Jan. 6 insurrection in a hastily called hearing on June 28 — but the question looms: by how much?

Hutchinson provided damning specific details showing that the Jan. 6 insurrection was not a non-violent demonstration that got out of hand, but rather an intentional disruption planned days in advance.

“We’re going to the Capitol. It’s going to be great,” Rudy Giuliani told her on Jan. 2, after which her boss, Chief of Staff Mark Meadows told her, “Things might get real, real bad on Jan. 6.” Donald Trump knew that the crowd was armed as he exhorted it to “fight like hell,” and wanted to go with them to the Capitol to prevent certification of his election loss.

As a result of her testimony, “There will be way more information,” from new witnesses, GOP committee member Adam Kinzinger told CNN. And pressure is rising to indict Trump on a variety of counts, pointing to two distinct potential futures, each dangerous to the future of democracy.

In the first, Trump declares his 2024 candidacy early, seeking to discourage his indictment as a declared candidate, but turning the mid-terms into more of a referendum on his threat to democracy, which could favor Democrats, making them more able to prevent a repeat 2020-style election-theft scenario. In the second, Trump holds back, Republicans make gains in the midterms, and are better positioned to undermine the 2024 election in less ham-fisted ways, and/or continue to undermine American democracy more broadly.

Potential erosion of support for Trump could push him towards the first alternative, while a spate of extreme-right Supreme Court decisions — most notably the overthrow of Roe v. Wade —underscores the danger of the latter. Significantly, after the last Supreme Court decision of the term was handed down, the court announced it would hear a case next term involving the “independent state legislature” theory, a version of which was central to Trump’s plan to derail Joe Biden’s election in the Electoral College.

Early on Jan. 6, Hutchinson said, White House Counsel Pat Cipollone warned her something to the effect of “Please make sure we don’t go up to the Capitol, Cassidy. Keep in touch with me. We’re going to get charged with every crime imaginable if we make that movement happen.” Taped witnesses and contemporaneous text messages confirmed that was Trump’s intention.

The committee also played taped police radio transmissions about weapons in the crowd, including glocks and AR-15s. This was among those who chose not to pass through security checkpoints with magnetometers (aka “mags”) screening for weapons. Trump was furious that they weren’t being let through, Hutchison said, paraphrasing Trump saying, “I don’t effing care that they have weapons. They’re not here to hurt me. Take that effing mags away. Let my people in. They can march to the Capitol from here. Let the people in.” That was before he told them to “Fight like hell.”

In short, he clearly intended to lead an armed mob to the Capitol — which could bring charges of both incitement to violence and seditious conspiracy, according to multiple experts.

But the Secret Service nixed the idea as unsafe when he got in his vehicle after the speech, and Trump exploded in anger, trying to grab the steering wheel himself, according to an account Hutchinson said she received shortly afterwards from Deputy Chief of Staff Tony Ornato. This account was disputed in the first 24 hours after Hutchinson’s testimony, but its essentials were then confirmed by multiple anonymous sources.

Trumpism Without Trump?

A Possibility Grows

Hutchinson’s testimony came just as the Supreme Court was concluding the most conservative term since 1931 according to a popular expert metric. With a hard right majority in place on the Court, Trump now seems more expendable than ever, even as he’s transformed the GOP along the way.

“Hutchinson’s sworn testimony closes a gap in the criminal case against Trump, and Trump is closer to a credible prosecution than ever before,” wrote David French, an editor at the conservative publication The Dispatch. And the right-leaning Washington Examiner said Hutchinson’s testimony “ought to ring the death knell for former President Donald Trump’s political career” and that “Trump is unfit to be anywhere near power ever again.”

“We’re seeing an avalanche of stories, an avalanche of people openly talking about considering a run in 2024, whether it’s Mike Pence, whether its Ron DeSantis, whether it’s Larry Hogan, the governor of Maryland, there are people who are putting themselves in place to run, regardless of what Donald Trump does,” former GOP congressional staffer Kurt Bardello said on MSNBC. “That tells you that there is a very real crack in the foundation and frankly, the idea of the Republican Party being remade into the image of Donald Trump, has been successful. They don’t need him anymore, because they have all embraced this radical extreme portrait of America, and they’re all acting on it now. They don’t need Donald Trump.”

White Christian nationalism has been key to Trump’s election and that transformation. He enjoyed 81% support among white evangelicals in 2016, running on the promise to remake the courts for them, and having delivered, he recently gave the keynote speech at the Road to Majority Policy Conference, where he led the way in demonizing Democrats. Katherine Stewart, author of The Power Worshippers: Inside the Dangerous Rise of Religious Nationalism, reported on what she saw there in a New York Times op-ed:

[T]hree clear trends were in evidence. First, the rhetoric of violence among movement leaders appeared to have increased significantly from the already alarming levels I had observed in previous years. Second, the theology of dominionism — that is, the belief that “right-thinking” Christians have a biblically derived mandate to take control of all aspects of government and society — is now explicitly embraced. And third, the movement’s key strategists were giddy about the legal arsenal that the Supreme Court had laid at their feet as they anticipated the overturning of Roe v. Wade.

Trump didn’t invent any of this, of course. But he was instrumental in normalizing and mainstreaming the more extreme, violent, confrontational elements. And now that he has, there appears to be no going back. Instead, would-be successors and allies are working to refine the effectiveness of the power-grabbing strategies and opportunities he and his Supreme Court appointees have advanced.

Stewart highlighted the role of two crucial, but less-noticed Supreme Court decisions in strengthening their legal weaponry:

They intend to use that arsenal — together with additional weaponry collected in cases like Carson v. Makin, which requires state funding of religious schools if private, secular schools are also being funded; and Kennedy v. Bremerton School District, which licenses religious proselytizing by public school officials — to prosecute a war on individual rights, not merely in so-called red state legislatures but throughout the nation.

No Crime At All

Meanwhile, on the pure political power front, the Supreme Court announced it will hear a case next year involving the “independent state legislature” [ISL] theory, which played a key role in Trump’s attempt to steal the election. The theory alleges that state legislatures have virtually unchecked power over federal elections—even the power to ignore the results in Trump’s extreme version. Less extreme versions prevent election officials, state courts or governors from having any role—as many did in response to COVID-19 in the 2020 election.

Marc Elias, a leading Democratic voting rights attorney who won scores of post-election court cases against Trump, explained what is afoot to the Washington Post:

Republicans tried to subvert the 2020 election, but were clumsy and they are now learning from that where the pressure points and vulnerabilities are in our election systems, and refining their tactics.

The Supreme Court has already gutted the Voting Rights Act, and given a green light to gerrymandering, so the ISL would be one more giant step toward destroying democracy in America. Not only could Trump (or another GOP candidate) will the presidency with minority support—like Trump in 2016 or Bush in 2000—he wouldn’t even need to win a majority of the Electoral College votes if enough state legislators were organized to elect him instead.

While attention has rightly been grabbed by Hutchinson’s alarming testimony, and more details are sure to come, the more serious long-term threat to American democracy comes from an entirely different direction—from the same folks who just destroyed a constitutional right for the first time in American history. In 2024, Republicans won’t have to commit every crime imaginable to steal the election. If the Supreme Court goes unchecked, stealing the election will be perfectly legal.