Can Trump Escape Accountability?  

Whether one self-identifies as a Democrat, a Republican, or an Independent most people would agree that the first seven hearings have far exceeded everyone’s expectations except I suspect those of Donald Trump.

After the first Select Committee hearing, it was readily apparent the decision to withdraw Republican members, leaving the “party pariahs”— Lynne Cheney and Adam Kinzinger —to hold the fort could very well turn out to be the former president’s Achilles heel.

It allowed for the hearings to be focused on the seditious lawlessness and not on politics as usual. Rather than the hearings becoming another partisan “food fight” like the impeachment hearings, these have been able to place the very survival of American democracy front and center.

In our culturally and politically divided America, plagued by “failures to communicate,” by alt-right violent threats to law and order, and by a withering Democratic Republic, the real life series of events that we have all been experiencing seem like some kind of fictional drama made for surrealist viewing.

In an on-screen world where the storyline of the central character has only gone from bad to worse and the plotlines have morphed into “good” versus “evil” narratives, the all-powerful superhero Attorney General Merrick Garland will sooner or later have to do battle with the all-powerful supervillain Donald J. Trump.

With the evidence already revealed by the hearings, the AG has no other choice than to prosecute Trump and his allies for a range of assorted felonies. A non-exhaustive list of those envisioned crimes includes, minimally, the obstruction of an official proceeding of Congress; conspiracy to defraud the United States; wire fraud; and witness tampering, if not seditious conspiracy too.

To do anything less than prosecute Trump to the full extent of the law possible would not only be a travesty of justice and a dereliction of duty; but also an act of surrender to the forces of political repression and authoritarian rule.

The Indefatigable Liar

During the televised hearings, the seditionist-in-chief has been partially absent from the proceedings. Meaning, that none of his partisan defenders or legal henchmen were present to run interference for him, as they did with the two impeachment trials that resulted in acquittals due to “jury nullification.”

Nevertheless, sometimes during and usually following, the hearings we hear from Trump. Twitter aside, Trump was piping in vis-a-vis social media with his inane commentary, or more accurately, name calling of those unfavorable witnesses testifying under oath against him.

When, for example, Bannon’s trial for criminal contempt of Congress was about to begin on July 18, Trump wrote the following in a letter dated July 9, 2022, allegedly waiving Bannon’s privileged claim not to testify before the committee, which the former president never provided and never had a right to in the first place:

I watched how unfairly you and the others have been treated. Therefore, if you  reach an agreement on a time and place for your testimony, I will waive Executive Privilege for you, which allows for you to go in and testify truthfully, as per the request of the Unselect committee of political Thugs and Hacks, who have allowed no Due Process, no Cross-Examination, and no real Republican members or witnesses.

The Take-Aways So Far

 With the incriminating evidence presented so far by the House Select Committee, we have learned a great deal about Trump’s criminal intent, why the seditious conspiracy to defraud the American people failed, and how the steadfast political campaign to overturn the 2020 election escalated overtime.

We know that the ultimate plan was to prevent the election certification of Joe Biden as president on January 6, 2021. We also know about the roles played by right-wing paramilitary groups, that violence was a part of the coup plot, and that Trump wanted to breach the Capitol alongside of his knowing and unknowing foot soldiers.

“In keeping with what authoritarians and demagogues do,” as Chauncey Devega has written, Jan. 6 was “a banana-republic moment” as Trump “wanted to be at the Capitol, if not on the floor of Congress, to take over and declare the election null and void,” and “to declare himself president during a time of national emergency.”

We know further that the lawfully defeated president was very angry that he could not go to the Capitol, and that his violent plan to overturn the election was blocked by law enforcement.

While there has been no “smoking gun” –pictures of Trump meeting personally and colluding with the leaders of the Proud Boys and the Oath Keepers at Club Mar-a-Lago—there is plenty of “circumstantial” evidence about Trump’s intent.

We have learned of the infamous meetings of his co-conspirators in the White House and elsewhere between Dec 18 and Jan 5. We already are aware of the close links between Trump underlings like Roger Stone and former Lt. General Michael Flynn and the leaders of the militia groups and the broader “Stop the Steal Mob.”

We also know about the timing and content of the former president’s tweets leading up to and even during the violent insurrection, as well as his editing of text with speech writer Stephen Miller and his ad-libbed violent lines in his Ellipse speech minutes before the assault on the Capitol.

And we’re likely to hear more details about this at the final hearing next week when the Committee doubles down on Trump’s actions on Jan. 6—especially during the 187 minutes while the assault persisted.

But between now and the onset of the Georgia and/or Department of Justice criminal trials, I do not imagine that anything will develop to alter any of the damaging evidence presented so far.

In fact, the more we learn about the social realities behind the seditious conspiracy to overturn the 2020 presidential election, the worse it becomes for Trump, and for his only available if not viable legal defense.

A Trumpian ‘Good Faith Defense’

 As a real estate tycoon, entrepreneur, entertainer, and politician, Donald Trump has boasted that to the best of his ability he has always “taken advantage of the laws. And frankly, so has everybody else in my position.”

Regarding the projector-in-chief, whenever Trump has accused others of doing something to him, it has usually been a case of “the pot calling the kettle black.”

Unlike the thousands of other civil lawsuits past or present that Trump has engaged in either as plaintiff or defendant, the upcoming criminal lawsuits will revolve around the legal issues of whether Trump’s defense team can establish a good faith defense for the former president.

Translated legally, this means: Did Trump lack the necessary intent to defraud the American people or was he acting in good faith?

In different words, it does not matter that the alleged beliefs or statements of the 45^th POTUS were false, or that his actions or inactions based on these were wrong. What matters is whether Trump had a good faith belief beyond a reasonable doubt that they were true.

With the “evidence” provided by the hearings thus far, it does not appear that Trump’s attorneys will be able to mount a good faith legal defense. Without this kind of defense available to Trump, he should be easily convicted, subject to the possibility of one or more MAGA jurors going rogue.

Nevertheless, do not think for a moment that in the court of public opinion that Donald won’t be singing his same old lyrics— “no collusion, no obstruction, no insurrection”—using the Mueller report, the first and second impeachment trials, the 2020 “rigged” election, and lastly the House Select Committee investigation, all as a “prima facie” case of the orchestrated witch hunt against Trump.

This lame defense to the charges of seditious treason as well as to every other crime imaginable that he may be charged with, might work in the court of public opinion, but it would most certainly be laughed out of a court of law.

Since Trump first retained Roy Cohen in 1973 to represent both himself and his father in a housing discrimination lawsuit, Donald has been fine-tuning the art of linguistic lying. Over five decades, Trump became not only a consummate white-collar criminal but also a very skilled technician in weaponizing the law.

His strategy involves focusing on temporary victories, employing unscrupulous methods, doing end-runs around the judicial systems, fixing disputed outcomes, and defending himself first and foremost by going on the offensive.

The “offensive defense” tactics often requires attacking and bashing your opponents with lies and falsehoods—a Trump specialty without equal.

As absurd as his sensationalistic defenses and lies are, they are often quite successful in lowering the credibility of one’s opponent such as the 46^th POTUS Joe Biden.

Gregg Barak

Should Trump ultimately be prosecuted by the Department of Justice, which I believe will ultimately occur, Trump’s linguistic jiu jitsu will be highly ineffective, because his opponents will no longer be individuals or private businesses engaged in civil conflict, but rather the people or the citizens of the United States versus Donald Trump for a litany of criminal offenses.

Gregg Barak, Ph.D., is an emeritus Professor of Criminology and Criminal Justice at Eastern Michigan University, the co-founding editor of the Journal of White Collar and Corporate Crime, and the author of the recently published  Criminology on Trump.