Kobach says Trump isn’t legally culpable for Jan. 6 ahead of potential federal indictment

As federal prosecutors move closer to a potential indictment against former President Donald Trump related to the Jan. 6 Capitol attack, Kansas Attorney General Kris Kobach said the former president should not be legally culpable for the riot that followed Trump’s rally in Washington that day.

In an interview with The Star Thursday, Kobach said Trump’s monthslong effort to sow doubt in the 2020 presidential election was protected by the First Amendment. He also cited Trumps’ statements on Jan. 6, 2021 urging a peaceful protest.

“I don’t think any politician should be considered criminally culpable for merely expressing his or her thoughts about the conduct of an election,” Kobach said.

Trump’s legal team met with members of Special Counsel Jack Smith’s team Thursday ahead of a potential indictment, according to the Associated Press.

Kobach said that any candidate should be permitted to question results.

“It’s important in any election, regardless of whether it’s a Republican or Democrat, if someone has doubts we have processes for recounts and election contests,” Kobach said. “I think expressing doubts is actually a First Amendment right of any candidate who’s running for office.”

Trump’s public comments and social media posts leading up to and on Jan. 6, Kobach said, should not be considered the cause of the day’s events in which Trump’s supporters stormed the Capitol in a failed effort to prevent certification of the presidential election. Roughly 150 police officers were injured in the attack, according to the New York Times.

“The president’s comments cannot be legally considered the cause of what happened and I don’t think that any efforts to ascribe the violence to the president’s remarks are accurate,” Kobach said emphasizing that Trump had told protesters to be peaceful

While Trump told supporters at his rally that day to march peacefully, he also told supporters to “confront this egregious assault on our democracy” and “fight.” Later in the day, after the mob had already shattered windows at the U.S. Capitol and pushed inside, he posted on Twitter, “Stay peaceful!”

Last week, Trump received a target letter from federal prosecutors informing him he was the subject of a criminal investigation into his efforts to overturn the 2020 election. According to the New York Times the efforts in question included seeking to convince Vice President Mike Pence to block the certification of Biden’s election, pressuring state officials and assembling a slate of fake electors in swing states.

Kobach, who advised Trump’s 2016 campaign and served as vice chair of a voting integrity commission convened in the early days of Trump’s administration, helped draft a Texas lawsuit seeking to overturn the 2020 election.

According to the final report from the U.S. House committee that investigated the Capitol attack, Kobach was one of eight attorneys who received an email from pro-Trump lawyer John Eastman in Dec. 2020 drafting ways Trump could remain in office.

The emails showed that Kobach, a private citizen at the time, advised that Pence likely did not have the authority to intervene in the certification of electoral votes.

Since becoming Kansas attorney general in January, Kobach has stayed relatively quiet on the growing number of indictments and probes into Trump. On Thursday he, said the string of indictments “reflects the weaponization of some office of prosecution.”

The president is facing charges in Manhattan related to hush money payments paid to a porn star ahead of the 2016 election, as well as a federal indictment alleging he mishandled classified documents after leaving office.

When considering an indictment of a former president, Kobach said, a high bar must be met. The existing indictments, he argued, did not clear that bar.

“It has to be done with the utmost care and with certainty that the charges are 100% airtight and no reasonable person could doubt the validity of the charges or the guilt of the individual,” Kobach said.

“The indictments we’ve seen have lacked the gravitas and the credibility to warrant what happened.”