The January 6 Project
Evaluating the Jan. 6 Committee’s Evidence
The Jan. 6 select committee has now held the first two of its public hearings in which the committee seeks to lay out its findings about the insurrection and the president who fomented it. The presentations in both hearings have been powerful, the recorded interviews compelling, and the rhetoric damning and often electrifying. The theater reviews are in, and the show is getting raves.
But what’s left after stripping away the set dressing and focusing only on the evidence presented? Specifically, how much progress has the committee made in proving its case?
In the opening hearing on June 9, Chairman Bennie Thompson described the committee’s ambitions as follows: to provide “a true accounting of what happened [on Jan. 6] and what led to the attack on our Constitution and our democracy.” Vice Chair Liz Cheney said the committee would present a “seven-part plan overseen by President Donald Trump to overturn the 2020 election.” Committee members spelled out aspects of this plan in their presentation, and a committee source later clarified the seven components of the plan.
In other words, the committee’s hearings should—at least in our view—be adjudged a success from an evidentiary point of view to precisely the extent that they would convince a reasonable person that:
- Trump attempted to convince Americans that significant levels of fraud had stolen the election from him despite knowing that he had, in fact, lost the 2020 election;
- Trump planned to remove and replace the attorney general and other Justice Department officials as part of an effort to pressure the department to spread his allegations of election fraud;
- Trump worked “to pressure Vice President Mike Pence to refuse to count electoral votes on January 6th”;
- Trump tried to convince state lawmakers and election officials to alter election results;
- Trump’s lawyers and other members of the president’s team directed Republicans in multiple states to produce fake electoral slates and send those slates to Congress and the National Archives;
- Trump assembled a destructive group of rioters in Washington and sent them to the U.S. Capitol; and
- Trump ignored requests to speak out against the violence in real time and failed to act quickly to stop the attack and tell his supporters to depart the Capitol.
The first hearing presented an overview of the evidence the committee collected, so it offered a bit of material in several of these baskets and sketched out the evidence members intended to present in a bunch of others. The second hearing, on June 13, was focused almost entirely on establishing the first point.
In this piece, which we will update on an ongoing basis as the hearings progress, we lay out what the committee has presented—or promised to present—on each of the seven points that make up its argument.
Note that these seven points are emphatically not the elements of any known crime, though they may overlap with any of several crimes in important respects. Note as well that the committee is not following the federal rules of criminal or civil procedure in determining the admissibility of evidence. So it would be a mistake to assume that if the committee has established its case, that translates into anything for purposes of either criminal or civil liability.
Rather, the committee in these hearings is telling a story with the seven points as a kind of table of contents of the story it wishes to tell. The public, in turn, gets to decide just how convincing that story is.
What follows is our effort at an evaluation.
Point #1: Evidence That Trump Knew He Had Lost the Election and Lied About Voter Fraud
In her opening statement in the second hearing, Cheney stated Point #1 as follows, quoting a federal court ruling on the subject: “In the months following the election, numerous credible sources—from the [p]resident’s inner circle, to agency leadership and statisticians—informed President Trump and Dr. [John] Eastman that there was no evidence of election fraud.”
First, she promised, the public would hear first-hand testimony that the president’s campaign advisers had urged him to await the counting of votes and not declare victory on election night. Cheney asserted that the president understood “even before” the election that many more Biden voters than Trump voters had voted by mail. She claimed he “knew” that these votes would not be counted until late in the day in multiple states, and would not be finalized—a voting dynamic that she asserted was “expected, reported, and widely known.” She stated that Trump disregarded his campaign counsel and instead “followed the course recommended by an apparently inebriated Rudy Giuliani, to just claim he won, and insist that the vote counting stop, to falsely claim everything was fraudulent.”
She then argued that the president and his legal team’s repeated allegations of fraud by Dominion voting machines were “‘complete nonsense,’ as Bill Barr said.” These allegations were refuted by “President Trump’s own campaign advisors, the Department of Justice, and his cybersecurity experts,” she said.
She then moved to the committee’s third key element. As Pence’s staff began to “get a sense” of Trump’s plan for Jan. 6, staffers asked for a comprehensive briefing on the election from the campaign team, and “on Jan. 2, the general counsel of the Trump campaign, Matthew Morgan—the campaign’s chief lawyer—summarized what the campaign had concluded weeks earlier, that none of the arguments about fraud, or anything else, could actually change the outcome of the election.”
Meanwhile, in her opening statement at the June 13 hearing, Rep. Zoe Lofgren—who led the presentation of evidence at the second hearing—put it as follows:
Former President Trump’s plan to overturn the election relied on a sustained effort to deceive millions of Americans with knowingly false claims of election fraud. All elements of the plot relied on convincing his supporters about these false claims…We will present evidence that President Trump’s claims of election fraud were false, that he and his closest advisors knew those claims were false, but they continued to peddle them anyway.
So how well did the committee substantiate these claims?
The committee actually did not present a great deal of evidence that Trump, in fact, knew or had any kind of subject understanding that he had lost and intentionally lied about it. There does not seem to be evidence, for example, that he ever confessed to anyone that he was aware that President Joe Biden had defeated him or acknowledged that his claims of voter fraud were garbage. It’s possible, as former Attorney General Barr suggested in his interview, that Trump had “become detached from reality” and had actually convinced himself of the nonsense he was peddling.
The committee did, however, present a great deal of evidence that credible actors repeatedly informed Trump that he had lost and that he was torturing reality in his public statements—that is, that he had every opportunity to know the truth, whether he was emotionally capable of internalizing that truth or not. The committee presented evidence, in fact, that Trump received this information from a diverse array of actors: his own campaign operatives, his campaign lawyers, senior Justice Department officials, and federal judges. At a minimum, the committee was persuasive that Trump had every reason to know that he had lost and simply chose not to accede to that reality but to propagate falsehood instead.
This story actually begins before Election Day itself, in the committee’s presentation. Lofgren noted public statements in which Trump claimed early on that he could lose only as a result of fraud. This fact presents perhaps the most powerful single piece of evidence that Trump’s claims of fraud after the election were a premeditated and preplanned response to defeat cooked up in the former president’s mind long before the election even happened. On April 8, 2020, for example, Trump alleged that fraud would occur with voting by mail, and a few months later, he claimed that “the only way we’re going to lose this election is if the election is rigged, remember that.”
Trump took other actions before Election Day that seemed designed to help his later fraud narrative. He actively discouraged mail-in voting, for example, despite the pleas of his campaign staff and senior Republicans. Trump’s campaign manager, Bill Stepien, was so concerned about the president’s discouragement of mail-in voting that he met with the president and Rep. Kevin McCarthy in the summer of 2020 and the two “made our case” for why mail-in voting was not a bad thing for Trump’s campaign. Stepien argued that urging voters to vote only on Election Day would leave a lot to chance and that the Trump campaign, the Republican National Committee, and the Republican Party all had the advantage of grassroots workers on the ground who could make mail-in voting work for the president. “But the president’s mind was made up,” Stepien said.
This strategy made no sense from the point of view of actually winning votes. But it made all the sense in the world if the goal was to allow the president to cry foul in the event of a defeat. The more that Democrats voted by mail and Republicans voted in person, explained former Fox News politics editor Chris Stirewalt, the greater the so-called Red Mirage—the tendency of vote counting to first favor Republicans and then swing toward Democrats. Because in many states, in-person votes get counted first, the early vote count looks much more heavily Republican than the full vote count. Stirewalt testified that Fox News tried to explain this effect to its viewers on election night because “the Trump campaign and the president had made it clear that they were going to try to exploit this anomaly, and we knew [the effect] was going to be bigger, because the percentage of early votes was higher.”
Other witnesses commented on the effect as well. Barr, for example, testified that the president claimed there was “major fraud” on election night, before there was any evidence of anything of the kind, and that seemed to be based on the dynamic that many Democratic votes came in later. But Barr said that “everyone” knew this would be the case for weeks in advance. Lofgren asserted that Stepien had testified that he had personally informed the president prior to election night that many votes would be counted in the days after the election—and that while the early votes would favor Trump, the later ones would probably be for Biden. Yet Trump nonetheless went on television, after receiving this information from his advisers, stating, “We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list.”
The committee also presented evidence that Trump’s claim of victory on election night took place in the face of clear warnings from senior staff that he had not, in fact, prevailed. Jason Miller said he was in the Oval Office when the campaign’s lead data expert told Trump “in pretty blunt terms” that he was going to lose the election. Stepien stated that he advised the president that it was “too early to call the race” and that Trump should acknowledge this, state he was proud of his campaign, and say that they were in a good position.
But Miller and Stepien testified that Trump listened to Giuliani, who was apparently drunk at the time, and claimed victory anyway. Miller stated that Giuliani wanted Trump to make a speech asserting he had won. Stepien stated that the president disagreed with his advice to be careful and said that he conveyed he was going to “go in a different direction.” And, of course, Trump insisted that evening publicly “we did win this election” and stated that “we want all voting to stop.”
In the days immediately following the election, as the count firmed up, Trump’s campaign operatives again told the president that the numbers just were not there for him to pull out a victory. Stepien described the trajectory of the election as the votes were counted in the week after election night, saying that his view of the election was “very, very, very bleak” at that point—specifically, that Trump’s chances of success were pegged at “five, maybe ten percent,” which he conveyed to the president.
The campaign lawyers, at least the respectable ones, also told the president his claims of fraud had no merit. In one case, Stepien and Faith McPherson received an email from Alex Cannon, forwarded to Mark Meadows, Justin Clark, and Jason Miller, showing the results from an investigation into Arizona voting records following claims that noncitizens had participated. The email, which showed that there was little to no evidence for this claim, was sent up the chain of leadership. Trump responded by marginalizing the lawyers who gave him the bad news. Stepien stated that the president was “growing increasingly unhappy” with his campaign team, and that at this point, he moved Clark out and put Giuliani in to take the lead on the campaign.
In the White House Counsel’s office, the story was the same. Derek Lyons, an associate counsel, said that a month and a half after the election, there was a meeting that concerned various allegations of fraud, during which the office “told the group, the president included, that none of the allegations had been substantiated to the point where they could be the basis for any litigation challenge to the election.”
And then there was the Justice Department. Barr testified that in three discussions with Trump (Nov. 23, Dec. 1, and Dec. 14), he informed the president that he “did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit.” Barr testified that he “repeatedly told the president in no uncertain terms that I did not see evidence of fraud ... that would have affected the outcome of the election.” Barr also said that these claims were “crazy stuff” and that these arguments were “doing a great, grave disservice to the country.”
Barr stated that he told Trump that the campaign had to raise its claims in state proceedings, because the Justice Department doesn’t take sides in elections and is not an extension of his legal team. He stated that he told the president that the department’s role is to investigate fraud, and that it would look at an allegation if it is specific, credible, and could have affected the outcome of the election. He said he told Trump that the department has been doing that, but the president’s claims were not meritorious and thus were not panning out.
Former Acting Attorney General Jeffrey Rosen, meanwhile, stated that the president would come to him with allegations, and he would reply that the department already looked into the theories and debunked them.
Former Acting Deputy Attorney General Richard Donoghue said he tried to “put it in very clear terms to the president,” detailing efforts and findings by the department and telling Trump that he was getting false information. Donoghue stated that he told the president that his claim about a high rate of ballot error in Michigan was wrong. The actual rate was tiny, which Donoghue explained and which Trump accepted, but Trump then proceeded to just move on to other allegations. “And again, 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,” Donoghue recalled.
Donoghue detailed several other allegations he debunked individually, only to have Trump then start talking about double voting, dead people voting, and claims that “Indians are getting paid to vote.” Donoghue said that he reiterated to Trump that the “information he is getting was false and/or just not supported by the evidence.”
Finally, the former U.S. attorney in Georgia, BJay Pak, testified that he was asked in early December by Barr to investigate a videotape Giuliani had shown by way of alleging that Fulton County ballots had been smuggled by suitcase into a counting area: “We found that the suitcase full of ballots … was actually an official lockbox where ballots were kept safe.” Giuliani had only played a clip. Pak said that the FBI interviewed the individuals shown in the video, that nothing irregular happened, and that Giuliani’s allegations were “false.”
In short, the committee is wholly persuasive that Trump was made aware of his defeat and the meritlessness of his claims of fraud. Its presentation on Point #1 lacks only a smoking gun as to Trump’s subjective state of mind in making the claims he advanced. The evidence on this point largely consists of his having laid the groundwork for the claim before Election Day and the information available to him being so voluminous that any ignorance on his part was necessarily willful.
Point #2: Evidence That Trump Tried to Pressure the Justice Department to Spread His Allegations of Election Fraud
Well before the Jan. 6 committee hearings began, a Senate Judiciary Committee investigation—which resulted in depositions of Richard Donoghue, Jeffrey Rosen, and BJay Pak, and a report back in October 2021—already released a lot of evidence on Point #2.
The committee has also interviewed the relevant parties and may have material to add. But that said, the outline of this story is already well known: After Barr resigned, having refused to take up Trump’s bogus allegations, and senior Justice Department officials told Trump they could not support his claims of election fraud, Trump sought to fire these officials and offered the attorney general position to Jeffrey Clark. Cheney, in the first hearing, claimed that Trump wanted Clark to send a letter to six states notifying them that the Justice Department had “identified significant concerns that may have impacted the outcome of the election.” This letter, according to Cheney, would have urged states to change their electoral votes. Key Justice Department officials threatened to resign in response, and Trump ultimately backed down.
Point #3: Evidence That Trump Pressured Pence to Refuse to Count Electoral Votes
As with Point #2, a considerable amount of evidence on this point has already emerged—in this instance from the committee’s litigation with Eastman. In that case, Judge David Carter laid out the facts in some detail in his opinion on March 28.
That said, the committee will surely have video testimony from relevant actors and can be expected to flesh out the record.
Cheney said in the first hearing that witnesses will testify that Pence and his staff told Trump multiple times that the president’s efforts to pressure Pence to refuse to count the electoral votes was unlawful. Cheney also referred to Judge Carter’s ruling—based on evidence the select committee had presented—which determined that Trump likely broke two federal criminal laws in the course of this conduct.
And, of course, a significant part of the relevant conduct took place in public. The committee presented video footage of Trump speaking at the Ellipse on Jan. 6, saying that “Mike Pence is going to have to come through for us.” During that same speech, Trump also stated that he would be “very disappointed” in Pence if the vice president did not reject the electoral votes. It is only shortly thereafter that people who had listened to Trump were chanting for Pence to be hanged. The committee has also presented video evidence of a rioter reading aloud a tweet from Trump during the insurrection itself. The tweet says: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
Point #4: Evidence That Trump Tried to Convince State Lawmakers and Election Officials to Alter Election Results
Cheney promised evidence in a future hearing detailing Trump’s efforts to coax state legislators and election officials to adjust the results of their elections. She cited, for example, the infamous call made by Trump to Georgia Secretary of State Brad Raffensperger in which Trump asked him to “find 11,780” nonexistent votes.
Again, this is an area in which a fair bit of evidence is already public. The committee has not focused on it in the initial hearings.
Point #5: Evidence That Trump’s Campaign Team Directed Republicans in Multiple States to Produce and Officially Submit Fake Electoral Slates
Cheney said in the first hearing that testimony will illustrate Trump’s attempts to “get states to rescind certified electoral slates without factual basis and contrary to law” and send phony slates of electors to Congress.
While this is an area that has seen a fair bit of public reporting, the committee has not focused on it yet.
Point #6: Evidence That Trump Assembled a Destructive Group of Rioters in Washington and Sent Them to the Capitol
This is a key point for the committee, as it was for the impeachment managers last year, and while it’s one that has not been focal in the hearings yet, the committee spent some energy on it in its overview.
According to Cheney’s remarks in the first hearing, the committee intends to show that “President Trump summoned a violent mob and directed them illegally to march on the United States Capitol.” Cheney stated that the full evidence for this claim will be presented in two hearings later this month. But she and other members highlighted a few preliminary bits to support the point, offering an early look at the committee’s evidence.
The committee laid out a narrative beginning during the presidential debate in September 2020, in which Trump addressed the Proud Boys directly, telling the far-right extremist group to “stand back and stand by.” The committee presented Proud Boys member Jeremy Bertino saying that recruitment skyrocketed after this comment. It further presented several tweets by Trump in December 2020, encouraging his supporters to come and “stop the steal”—or, in the committee’s telling, block the peaceful transfer of power—on Jan. 6. One of Trump’s tweets reads, for example: “The BIG Protest Rally in Washington, D.C., will take place at 11:00A.M. [sic] on January 6th. Locational details to follow. StopTheSteal!”
The committee showed the infamous clip of Trump’s speech on the day of the Capitol breach itself, in which he stated: “We’re going to walk down to the Capitol.” It also previewed the argument that Trump’s rhetoric against Pence on Jan. 6 incensed the rioters, including video of the president stating at 12:05 p.m.:
I hope Mike is going to do the right thing. I hope so. I hope so. Because if Mike Pence does the right thing, we win the election… All Vice President Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people… And if he doesn't, that will be a, a sad day for our country, because you'll never, ever take back our country with weakness. You have to show strength and you have to be strong.
And the committee argued that Trump’s supporters were moved by his words, displaying footage of one Jan. 6 attendee reading aloud a tweet by Trump alleging that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution.”
The committee also played a montage of Proud Boy interviews in which rioters declared that they had come to Washington because Trump had called them.
So far, at least, it is unclear whether the committee is in a position to move the evidentiary ball on whether Trump intended to provoke a riot or merely behaved recklessly.
Point #7: Evidence That During the Attack, Trump Ignored Requests to Speak Out and Failed to Act Quickly
This is perhaps the area in which the committee has the greatest gap to fill in the public’s understanding of Trump’s conduct during the insurrection. Cheney claimed in her overview that evidence presented in the final two June hearings will show that “while the violence was underway, President Trump failed to take immediate action to stop the violence and instruct his supporters to leave the Capitol.” She said that, “aware of the rioters’ chants to hang Mike Pence,” Trump responded, “Maybe our supporters have the right idea” and that perhaps Pence “deserves it.” She quoted from text messages between the White House and Fox News hosts Sean Hannity and Laura Ingraham insisting the president needed to act to stop the riot. For example, Hannity wrote to Trump’s then-press secretary, Kayleigh McEnany: “Key now, no more crazy people”; “No more stolen election talk”; and “Yes, impeachment and 25th amendment are real, and many people will quit.” McEnany responded in part: “Love that. That’s the playbook.”
She also quoted a document written by a White House staff member seeking to advise Trump on how to act amid the riot. The document says, “Anyone who entered the Capitol without proper authority should leave immediately.” She also said that Trump’s supporters on Capitol Hill—including Leader McCarthy—and around the country implored the president to act to stop the violence. However, Cheney said, Trump did not tell the rioters to leave the Capitol, and the president did not “call … any element of the United States government to instruct that the Capitol be defended.” Specifically, she noted, Trump did not call the secretary of defense, and he did not speak to the acting attorney general or the Department of Homeland Security. Trump also did not order the deployment of the National Guard, and he did not attempt to work with the Justice Department to deploy law enforcement personnel.
Rather, Cheney promised evidence that Trump “sat watching television” while the rioters were attacking the Capitol. She said that testimony will reveal that Trump “refused for hours to do what his staff and his family and many of his other advisers begged him to do, immediately instruct his supporters to stand down and evacuate the Capitol.” Only after multiple hours of the riot, she said, did Trump release a video in which he told the rioters to leave the Capitol. However, the president also said in the video, “We love you and you’re very special.”
At points, she claimed, Trump even seemed to endorse the riot, saying to his staff that his supporters “were doing what they should be doing.” Cheney promised testimony that Trump did not want to instruct the rioters to stop their attack but was, rather, yelling at advisers who were telling him to take a stronger stand. Cheney said the evidence will show that “[t]here’s no doubt that President Trump was well aware of the violence as it developed.”