The New Jan. 6 Testimony Against Trump Will Be Devastating at Trial

On Sunday, ABC News reported on new evidence now in the hands of special counsel Jack Smith that signals a turning point for the prosecution against Donald Trump. If and when the trial goes forward after Trump’s immunity appeals wrap up, the new evidence will be kryptonite to Trump’s hopes for avoiding a conviction.

Progress toward the trial is currently paused during Trump’s appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Experts like Norm Eisen expect that Trump’s weak appellate claims to immunity and purported protection from double jeopardy are likely to be resolved against him well in time for a trial before the November election.

ABC’s latest reporting describes Smith’s interviews with Trump’s close aides, like Dan Scavino, Trump’s communications guru. The interviews put firmly on record Trump’s statements during the three hours on Jan. 6 when he refused like a petulant child to ask the Capitol invaders to go home.

The powerful reported testimony goes straight to the crucial issue in the case: Did Trump criminally intend to overturn the 2020 election? His newly reported statements would conclusively establish for any reasonable juror that Trump wanted the siege to succeed in stopping Congress from certifying President Joe Biden’s election.

We already knew about Trump resisting the entreaties of aides, family, and political allies who begged him, once violence began, to immediately call off the dogs of insurrection. He fiddled for 187 minutes while Rome burned.

So what’s new about the evidence that ABC reported Sunday?

Trump’s reported statements are loaded with cruelty, self-interest, and abandonment of allies. It becomes indisputable that he was using his most violent followers to try to override the voters’ will and keep himself in power.

The statements that ABC reported are new, in part, because witnesses like Scavino and Mark Meadows, the Trump White House chief of staff, didn’t speak with the House Jan. 6 committee.

Scavino still works for Trump’s campaign. Per ABC, he’s been so close and “so supportive of Trump over the years that … in 2020 … Trump joked that … Scavino was ‘the most powerful man in politics.’ ” That will make his testimony especially compelling.

Scavino has now reportedly confirmed something vital to Smith—that it was Trump and Trump alone who posted his infamous 2:24 p.m. Jan. 6 tweet: “Mike Pence didn’t have the courage to do what should have been done.” The Wall Street Journal has called that tweet “the critical moment” of the siege because it poured truckloads of kerosene onto an already roaring fire inside the Capitol.

Scavino reportedly told Smith’s team that Trump only posted the tweet after Scavino left him by himself in the White House dining room, Scavino having failed “to persuade Trump to release a calming statement.” After the posting, multiple aides returned to tell Trump that the tweet was “not what we need.”

Trump reportedly responded, with no concern for the tweet’s inciting effect: “But it’s true.” As Nick Luna, now a former Trump aide, reportedly told investigators, Trump “showed he was ‘capable of allowing harm to come to one of his closest allies’ at the time.” This was Luna’s assessment of Trump’s response to the news that Mike Pence had to be evacuated from the Capitol, which ABC reported was “So what?”

ABC also reported that Meadows filled in evidentiary gaps about information we had from public reporting. Meadows reportedly confirmed for Smith that he was present to hear Trump tell then–House Minority Leader Kevin McCarthy, “I guess these people are more upset about the election than you are.”

McCarthy, too, had refused to testify before the House Jan. 6 committee. He has never publicly acknowledged that Trump spoke those words to him on Jan. 6, and we don’t know whether he’s told Smith about hearing them.

Meadows having done so also corroborates bombshell testimony that the House Jan. 6 committee received from Cassidy Hutchinson, Meadows’ aide—that during the early moments of violence on Jan. 6, she heard Meadows tell Pat Cipollone, the White House counsel, Trump “didn’t want to do anything” to stop it.

Finally, ABC reports notable evidence about Trump’s 6 p.m. tweet after the violence ended: “These are the things and events that happen when a sacred landslide election victory is … viciously stripped away from great patriots…. Remember this day for forever!”

ABC reported that Trump posted the message despite Luna’s warning “that it made him sound ‘culpable’ for the violence, perhaps even as if he may have somehow been involved in ‘directing’ it.” Thus, he was on notice from a trusted ally that the message conveyed his criminal responsibility for the violence, and he published it anyway, demonstrating that it was no innocent mistake.

On Sunday, Trump’s team downplayed the significance of ABC’s blockbuster. A campaign spokesman said:

This hearsay claim is 100 percent wrong. What witnesses told Trump and what he told them are not “hearsay” because the statements will not be offered in court to prove the truth of what they assert. Only statements offered for that purpose meet the legal definition of hearsay and are barred from being heard by jurors in criminal proceedings.

Take for example, Trump’s assertion to McCarthy that the Capitol invaders were “more concerned about the election” than he was. Smith would not offer that statement to prove its truth. Rather, Smith would offer the evidence to prove Trump’ criminal state of mind, a necessary element of every offense. Instead, the statement will be introduced to show that Trump wanted the insurrection to continue and succeed in blocking the election certification.

The introduction of such testimony from Trump’s closest aides establishes his criminal intent and should seal his fate in the trial to come.