Just a few days after the Jan. 6 attack, Andrew McCabe, the former deputy director of the FBI, and David Williams, the former inspector general for five federal agencies, wrote a joint op-ed for Politico that raised a few eyebrows. As we discussed at the time, McCabe and Williams said Donald Trump could face criminal charges for inciting a riot, noting that it's a federal crime to "endeavor to persuade" another person to commit a felony that includes the threat or use of physical force.
The Washington Post reported soon after that the then-president's legal advisers "expressed increasing concern" about the Republican's "possible criminal liability." The article added that Trump had been told by attorneys "that he could face legal jeopardy for inciting a mob." An adviser close to Trump told CNN the then-president was "worried about" being prosecuted.
We now know, of course, that nothing came of this. But what if there were a different area of criminal liability for the former president related to his anti-election efforts?
Rep. Liz Cheney, the Republican co-chair of the committee investigating the Jan. 6 attack, surprised many last night by reading important text messages sent to then-White House Chief of Staff Mark Meadows during the deadly riot. But what the Wyoming congresswoman said next was just as notable:
"Mr. Meadows's testimony will bear on another key question before this committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress' official proceeding to count electoral votes?"
Cheney chose her words carefully because she was referring to statutory language: To corruptly seek to obstruct or impede Congress' official proceeding to count electoral votes is a crime. (She repeated the line to the House Rules Committee this morning.)
As Rachel noted on last night's show, the Justice Department has launched a series of prosecutions related to Jan. 6, but in each instance, federal law enforcement has charged rioters — not those who invited the rioters, whipped the rioters into a frenzy, or dispatched the rioters to attack the Capitol. As best as we can tell, the Justice Department has similarly shown no interest in targeting those who tried to overturn the election results through less violent means.
But Cheney's public comments last night suggest the bipartisan select committee has possible criminal misconduct on its members' minds.
It's not just Trump. Jeffrey Clark, a former Justice Department official Trump considered for attorney general to help him steal the election, recently pleaded the Fifth in response to questions from the Jan. 6 committee.
It was against this backdrop that Cheney said last night that Trump, after being told that his election conspiracy theories were wrong, wanted Clark to lead the Justice Department so that he could claim that the election conspiracy theories had merit. The GOP congresswoman then added, "Mr. Clark has informed this committee that he anticipates potential criminal prosecution related to these matters, and intends in upcoming testimony to invoke his Fifth amendment privilege against self-incrimination. As Mr. Meadows' non-privileged texts reveal, Meadows communicated multiple times with a member of Congress who was working with Mr. Clark."
I'm a little surprised this isn't generating more conversation today. Cheney said — out loud, while reading from a prepared text — that a then-Justice Department lawyer was allegedly involved in a scheme to overturn the election; he's told the bipartisan panel he expects possible criminal charges; and texts from the former White House chief of staff suggest the lawyer was working directly with a member of Congress.
And while the public doesn't know which member of Congress we're talking about, Meadows' texts have informed the committee of the member's identity.
Up until now, the criminal dimension of this story has been limited to contempt of Congress — first for Steve Bannon, and soon for Mark Meadows — and the ongoing criminal investigation into Trump's alleged efforts to interfere with election proceedings in Georgia. But there's no reason to assume the list will end here.
As Rachel put it on the show, "Whether or not the federal Justice Department is ever going to investigate or prosecute anyone for this scheme, trying to interfere in a state's elections, trying to induce officials to mess with the election results, pressuring officials to change election results, that's a crime in every state in the country."
And who allegedly engaged in such activities? According to the latest revelations, Republican officials in the Trump administration and in Congress.
Watch this space.