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Dan Rodricks

Dan Rodricks: Is Trump criminally liable? Let us count the ways — 5 to be exact | COMMENTARY

If you’re Donald Trump — and I wouldn’t wish that on anyone — what are you worried about?

Over the last month, the House committee investigating the January 2021 attack on the U.S. Capitol presented plenty of testimony about the loony efforts to overturn the 2020 presidential election and keep Trump in office. But, at this point, does the former president have any criminal liability?

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Putting together a solid — and unprecedented — federal case against the 45th president is a tall order with motives and mindset key to convincing a potential jury that Trump’s actions were criminal. Is prosecution even possible?

I’ve presented this question to several attorneys, the latest Ty Cobb, who earned his chops as a federal prosecutor in Baltimore at the start of a legal career that took him to the Trump White House in 2017.

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Cobb served as special counsel to the president during Robert Mueller’s investigation of Russian interference in the 2016 election.

While he spent decades as a defense attorney, Cobb says he still thinks like a prosecutor. “Once you do that,” he says, “it’s always in your blood.”

Of late, Cobb has broken silence and appeared in the media to give his opinions about Trump and the Jan. 6 findings.

The committee’s most recent hearing focused on connections between white supremacist groups, the Trump White House and the attack on the Capitol. Cobb’s conclusion: The committee “does not have the goods” to prove Trump was involved in a conspiracy. He deserves blame for the violence of Jan. 6, Cobb says, but proof that he was involved in a coordinated plan is so far lacking.

“Should he have known there would be violence [on Jan. 6]? Maybe,” says Cobb. “But Trump does not think like an ordinary person. Trump is a very seriously wounded narcissist, and his narcissism and self-interest cloud every single thought he has.”

Some analysts insist that Trump knew exactly what he was doing on Jan. 6. But that, says Cobb, accords the former president far more rationality than the same analysts ever assigned him over the last six years.

“If I’m Trump,” says Cobb, “I’m less worried about the Capitol stuff because it’s a reach and ultimately, whether it’s the D.C. Court of Appeals or the Supreme Court, I don’t think there’s a conviction that can be sustained there based on the existing evidence.”

So are there any reasons Trump should worry?

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At least five, according to Cobb.

“I would be worried about the call to Raffensperger,” he says, a reference to the phone call Trump made in early January 2021 to pressure Georgia Secretary of State Brad Raffensperger to change the state’s vote totals and give Trump an illegitimate win over Joe Biden.

“I just want to find 11,780 votes,” Trump said during the recorded call. “I need 11,000 votes, give me a break.”

And then, Cobb says, don’t forget the call Trump made to Rusty Bowers, Speaker of the Arizona House of Representatives, for the same purpose. According to testimony last month before the committee, Trump and lawyer Rudy Giuliani pressured Bowers to have the state legislature replace Biden electors with electors loyal to Trump. John Eastman, the conservative lawyer engaged in the effort to overturn Biden’s victory, told Bowers to “just do it and let the courts sort it out.” Bowers refused.

Says Cobb: “Trump can think he won, he can think the election was stolen, and he could say that to those guys, but he can’t tell [Raffensperger] to, ‘Find me an extra [11,780] votes,’ and he can’t say, nor can his lawyer say, ‘Just do it’ to the guy in Arizona.”

And then there is the phone call Trump placed in December 2020 to Richard Donoghue, his acting deputy attorney general, as well as the actions taken toward Vice President Mike Pence. According to Donoghue, Trump told him to “just say the election was corrupt and leave the rest to me and the [Republican] congressmen.”

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Officials of the Department of Justice had told Trump there was no evidence of fraud, yet he persisted in personally pressuring them to go along with the big lie. The Jan. 6 committee learned that a group of Republican members of Congress, including Andy Harris of Maryland’s 1st District, met at the White House in December 2020 to discuss Eastman’s scheme to have Pence reject the election results on the day they were to be certified, Jan. 6.

Cobb says: “It would be hard to say that’s not an attempt to interfere with the fair resolution of the election. The same is true for trying to convince Pence to do something that his lawyers had already advised him he did not have the authority to do.”

Cobb then brought up another matter that should worry Trump — the raising of millions of dollars for an “election defense fund” that did not exist. When the committee first reported this, it struck me as a possible federal fraud case. The Trump campaign sent emails to supporters and raised $250 million for lawsuits, but most of it went to Trump’s Save America PAC, and from there to entities that had nothing to do with election litigation.

“It’s hard for me to fathom how a case could not be developed there depending on how the facts evolved,” says Cobb. “I don’t know the terms under which people donated. I don’t know what representations they relied on. But that smells.”


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