On Tuesday, Bob Woodward and Robert Costa reported in the Washington Post that the House select committee investigating Jan. 6 has the White House presidential phone log, and it shows a seven-hour gap in the record of his communications that fateful day.
The gap’s importance is difficult to exaggerate. The evidence of former President Donald Trump’s criminal intent with regard to his efforts to overturn the 2020 election is building, day by day, so relentlessly that at this point, a failure to prosecute becomes tantamount to a negation of the rule of law’s first principle—that no person “stand[s] above the law.”
Why is the gap so significant? If, as some analysts have hypothesized, Trump is so detached from the factual world that he actually believed his own Big Lie that the 2020 election was marred by fraud, that would make conviction for trying to steal the election difficult. Under this analysis, he would not have thought he was acting “wrongfully,” a necessary element for conviction on the charges to which he is most vulnerable.
Hiding one’s calls and conduct on Jan. 6, 2021, as it appears Trump did, rebuts his potential defense that he thought he was acting righteously. People who believe that their behavior is law-abiding do not cover it up in this way.
Let’s look at the facts and the law the way any Justice Department prosecutor—including Attorney General Merrick Garland—ordinarily would.
The seven-hour gap ran from 11:17 a.m. to 6:54 p.m. During the gap period, we know from reporting about a call that the then-president mistakenly made to Sen. Mike Lee—trying to reach Sen. Tommy Tuberville. Lee handed his phone to Tuberville, with whom Trump spoke for five to 10 minutes. During that call, Capitol police instructed them to evacuate the Senate chambers because insurrectionists had breached the Capitol.
We also know of a phone conversation he had with House Minority Leader Kevin McCarthy and of another with Vice President Mike Pence during the gap period. Pence continued to rebuff Trump’s pressure not to allow the certification of Joe Biden’s Electoral College victory.
None of these calls appears on the logs.
In addition, Rudy Giuliani, John Eastman, and Steve Bannon were reportedly huddled on Jan. 6 in a de facto “command center” at the five-star Willard Hotel in D.C. Trump spoke to them before the log gap, and it strains credulity to believe he did not talk with them again during the many hours when calls were not recorded. Any prosecutor would subpoena the phone company records listing those individuals’ calls that day and the numbers to and from which those calls were made.
Now let’s look at the law. I’m a former federal prosecutor, and one of my favorite jury instructions, when the evidence against a white-collar criminal supported it, covered consciousness of guilt: “If you believe that [the defendant sought to conceal evidence], then you may consider this conduct, along with all the other evidence, in deciding whether … [he/she] thought [he/she] was guilty of the crime charged and was trying to avoid punishment.”
Using alternate means of communication over five or six hours, including others’ phones or potentially “burner phones,” to avoid calls being logged would justify such an instruction.
Importantly, such a subterfuge would also circumvent a legal obligation, adding to the evidence of corrupt intent. Under the Presidential Record Act, the president has a duty to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of the President’s … official or ceremonial duties are adequately documented.” On Jan. 6, Trump did not.
In apparent response to the Washington Post story, Trump has denied using a “burner phone” of the kind that his allies bought with untraceable cash and used that day. Tellingly, however, there is no report that Trump denied using others’ phones.
On CNN on Tuesday, Bob Woodward told John King that he got to know Trump very well during his many hours interviewing him during the 2020 campaign, and that Trump is a phone “addict.” Woodward said that the notion Trump stopped using the phone during the multi-hour gap period was as unlikely as “the sun not rising” tomorrow.
The Post’s report about the length of the gap in White House records adds significantly to the already overwhelming evidence of Trump’s criminal intent. Indeed, just on Monday, in a 44-page opinion, a federal court found it “more likely than not” that Trump and John Eastman “corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” and with deceitful intent conspired to defraud the United States.
For his part, Judge David O. Carter explicitly addressed the matter of Trump’s likely knowledge of wrongdoing, writing “this evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification.”
Pointedly, Carter concluded, “If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution.”
In 1973, Richard Nixon’s investigators learned of an 18.5-minute “gap” in White House tape recordings during the Watergate cover-up. Trump’s gap in his phone logs is more than 400 minutes. The numerical comparison, however, is the least of it. Nixon was covering up a “third-rate burglary” of Democratic Party headquarters at D.C.’s Watergate complex. Trump looks to have been covering up an attempted coup d’état.
To be sure, what took Nixon down was actual White House tapes. If Garland is waiting for that kind of smoking gun, he is sending an unmistakable signal that Trump, even in apparently conspiring to end American democracy, is above the law.