On Monday, the Jan. 6 hearings continued with live testimony and recorded depositions from Donald Trump’s advisers and inner circle, demonstrating, once again, the extent to which his staff knew that his claim that the election was stolen was, in the words of former Attorney General William Barr, “bullshit.” New revelations were limited, but over the course of the second hearing, the committee reiterated its case that Trump was constantly being made aware of the fact that his claims had no basis in reality.
It’s clear that the committee is trying to make the case that Trump knew—or should have known—that his behavior was corrupt, and possibly criminal. It’s the kind of move a prosecutor might make to prove a case in the court of law against Trump. On Monday, members of the Department of Justice were again the key witnesses against the former president, with Barr himself playing the starring role.
The hearing began with former Trump campaign officials testifying about what led to Trump’s immediate post-election night declaration of victory. As Jason Miller, a senior adviser to the Trump campaign described it, a “definitely intoxicated” Rudy Giuliani “was saying, ‘We won it. They’re stealing it from us. Where did all the votes come from? We need to go say that we won.’ And essentially that anyone who didn’t agree with that position was being weak.” Giuliani’s drunken ranting became Trump’s talking point, with the former president telling the nation in the early hours of the Wednesday morning after the election “as far as I’m concerned, we already have won it.” He has continued to maintain this position ever since. Both Miller and former Trump campaign manager Bill Stepien testified in depositions that they were opposed to this approach, as it was clearly premature to declare victory and that fraud had marred the election while votes were still being counted
Again, Barr was the most compelling witness on this set of questions.
“Right out of the box on election night, the president claimed that there was major fraud underway. I mean, this happened, as far as I could tell before there was actually any potential looking at evidence,” Barr declared in his prerecorded deposition. “It seemed to be based on the dynamic that at the end of the evening a lot Democratic votes came in, which changed the vote counts in certain states, and that seemed to be the basis for this broad claim that there was major fraud. And I didn’t think much of that, because people had been talking for weeks and everyone understood for weeks that that was going to be what happened on election night.”
Basically, Barr suggested that there was a preconceived plan by Trump to declare that there was fraud and that he had won no matter what the outcome, based on the fact that the ballots of his own voters—who he had encouraged not to vote by mail—would be counted first in many key states.
Indeed, this was similar to Trump’s past playbook. During the 2016 Iowa Caucus, Trump declared that his opponent Sen. Ted Cruz had stolen the victory through “fraud.” Even after Trump won the general election that year but lost the popular vote, Trump claimed that he had actually won on both counts but had been cheated via unspecified “fraud.” Two days before the 2020 election, Axios’ Jonathan Swan reported Trump’s plan to claim victory no matter what. In reality, as election week wore on, Stepien testified, Trump’s campaign team saw the writing on the wall even as Trump became more and more wedded to the Big Lie. That week, Stepien told Trump directly that there was between a 5 and 10 percent chance that a recount might bring him victory.
As the fraud claims grew more and more varied and preposterous, though, other Trump lawyers grew more dismayed with the president’s approach. “What they were proposing I thought was nuts,” Trump White House lawyer Eric Herschmann testified. “It was a combination of Italians and Germans, and different things that had been floating around as to who was involved. Remember there was Chavez and the Venezuelans and an affidavit from somebody who said he wrote software in, and something in the Philippines. Just all over the radar.”
While it’s still unclear whether there will ultimately be charges against Trump related to his attempts to remain in power despite losing the 2020 election, the committee is clearly approaching its work the same way a prosecuting body would. As Frank Bowman, a former prosecutor in the DOJ and in the U.S. Attorney’s Office for the Southern District of Florida, told me following the last hearing:
Were I the prosecutor, I’d begin my case … by proving affirmatively that there was no fraud that could have affected the election outcome, then move on to calling as many witnesses as were available who told Trump that this was the case. That makes the prima facie case of his state of mind.
This is exactly what the committee has done. Bowman continued describing a hypothetical trial, saying, Trump would:
have to call [as witnesses] people who spoke to him and told him that there was in fact electorally significant, results-affecting fraud. The number of such people, so far as I know, is minuscule. And they are all demonstrably nuts or charlatans, who would also be shredded on cross. In the end, the best Trump could hope for is an argument that the President of the United States was either utterly delusional or chose to act in disregard of the overwhelming weight of facts understood and related to him by all his rational advisors. The latter state of mind is referred to as “willful blindness”—and in the criminal law is treated as equivalent to knowledge. There is indeed a standard federal criminal jury instruction on the point.
Barr was central in depicting this precise story of how scattershot and off-the-wall Trump’s fraud claims were, but also in conveying that Trump had been made aware that the fraud claims have no basis in reality. Barr described one particular report that Trump had asked an aide to print for the attorney general while he was in the president’s office as a breaking point for him.
“I didn’t see any supporting information for it and I was somewhat demoralized because I felt ‘well, if he really believes this stuff, he has lost contact—he’s become detached from reality,’” Barr said.
This testimony from Barr would seem to bolster Trump’s “utterly delusional” defense in any hypothetical trial. But Barr immediately turned around and testified that Trump was burying his head in the sand. “On the other hand, when I went into this and would tell him how crazy some of these allegations were there was never an indication of interest in what the actual facts were,” Barr testified. This was a clear implication from a person who led the Department of Justice twice that Trump had been “willfully blind.”
If Trump didn’t care to know what the facts were, relied entirely on provable drunkards and charlatans for his “knowledge” that the election was stolen, and ignored the counsel of every sensible lawyer he spoke with, it could be enough to show a jury that he chose not to hear the truth, and was thus liable for his actions. “He oughtn’t be relieved of liability on the transparently false assertion that he believed his own self-serving fiction,” Bowman told me.
Again, Barr seemed to come very close to getting at this point during his testimony. “I felt that before the election it was possible to talk sense to the president and while you sometimes had to engage in a big wrestling match with him that it was possible to keep things on track, but I felt that after the election he didn’t seem to be listening,” Barr said in his deposition. “I was inclined not to stay around if he wasn’t listening to advice from me or his other cabinet secretaries.”
There was one big problem DOJ officials faced when confronting Trump about his false allegations: Trump literally grabbed every single conspiracy theory on the internet no matter how insane it was. He had hundreds of such theories to throw back at his own officials each time they debunked the previous one, which is exactly how conspiracy theorists work. Richard Donoghue, who became acting deputy attorney general after Barr resigned, described this dynamic in his own testimony, sharing how every time he debunked an allegation of fraud for the president, Trump would offer another one, or just vaguely say “what about the others?” From Donoghue:
I said something to the effect of: Sir, we’ve done dozens of investigations, hundreds of interviews, the major allegations are not supported by the evidence developed. We’ve looked in Georgia, Pennsylvania, Michigan, Nevada. … Much of the info you’re getting Is false. And then I went into for instance this thing from Michigan, this report about a 68 percent error rate [in the vote tally]. The reality is it was only 0.0063 percent error rate, less than one in 15,000. So the president accepted that, he said ‘OK fine, but what about the others?’ And this gets back to the point that there were so many of these allegations that when you gave him a very direct answer on one of them, he wouldn’t fight us on it, but he would move to another allegation. So then I talked a little bit about [another and told him] that that allegation was not supported by the evidence.
Trump’s response to Donoghue’s reasoning? “Again, he said ‘OK,’ and then he said, ‘Note I didn’t mention that one, what about the others?’ ” Donoghue testified. Trump’s response makes clear the challenge of proving that he knew his Big Lie was in fact a big lie. The election was so steeped in misinformation—which Trump himself was pushing—that he could press his own staff to have to debunk a virtually infinite series of claims.