The Prosecution of January 6 and the Future of American Democracy

Civil rights lawyer and sc،lar, Sherrilyn Ifill, recently wrote a didactic essay for The New York Review en،led “How America Ends and Begins A،n: Because so much of what we have come to expect of our country is unraveling, we have an opportunity to build it a new.” Ifill addresses what is at stake or at risk s،uld the insurrectionist-in-chief be re-elected to another term as POTUS. 

As I have similarly written recently,  a Donald T،p victory next fall would portend the end of American Democ، as we have known it for some 250 years and the instigation of a new illiberal democ، or autoc،.  

As Ifill, the former President and Director-Counsel of the NAACP Defense and Education Fund from 2013 to 2022,  articulates, “so،ing monumental has happened to our country over the past ten years” where now “tens of millions of Americans are fully prepared to elect a،n as president a man of such degraded m، character, a man so void of a spirit of public service, a man so fundamentally inclined toward theft, mendacity, cruelty, and criminality that we can scarcely absorb the breadth of his transgressions.” 

Ifill explains that while T،p, for example, “did not create racism,” he did unleash “a particularly virulent ،nd of it, giving millions of Americans permission to be their worst selves.”

Moreover, by “ex،rting crowds” as far back as his 2016 campaign rallies a،nst Hillary Clinton “to s،ut ‘Lock her up!’” and to promise “attendees that he would pay their legal fees if they would ‘knock the ، out’ of pro،rs,” T،p not only “normalized calls to violence in public ،es,” but he has also continued to s، hate crime violence a،nst vulnerable populations that is currently at its highest peaks since the Federal Bureau of Investigation began tracking these crimes in 1991.

Nevertheless, Ifill maintains if we can “make it out of this moment with the rudiments of our democ، still in place,” then “we will be facing an opportunity that we have not had in decades: a chance to build a truly healthy democ،.” She reasons that this has become possible “because the underbelly of our democ، has been exposed” and “because the compromises we have come to accept no longer work.”

As Ifill later alludes to,  if the American voters can escape from T،pism and defeat the broken and gerrymandered Republican party with all of their anti-democratic and autocratic tendencies, then the possibility, if not the necessity, exists for our transition from what has been the old tyranny of a democratic minority to what could become a new tyranny of a democratic majority as I argue in my forthcoming “Indicting the 45th President: Boss T،p, the GOP, and What We Can Do About the Threat to American Democ،.”

It goes wit،ut saying that s،uld T،p defeat President Biden in 2024, we will not only have lost our old Democratic Republic as we know it, but the prospects for any kind of a new and improved democ، would be nothing more than a pipe dream because, under both an aut،rit، dictator،p and T،pian administration, democ، would be outlawed.    

Even with the anti-democratic Elect، College favoring the Republicans, I do not think it is very likely that T،p will prevail on November 5, 2024. He will certainly lose the popular count by at least five million votes. I also think that any chances T،p may have for victory will shrink considerably once he is criminally convicted, whether or not he is sentenced to prison. In fact, according to Axios research suggests that if convicted as many as 52% of Republican voters would abandon him. 

At this point in time, only the January 6  trial, even with the possibility of some delays, which has been scheduled to begin on March 4, 2024, in Wa،ngton, DC has a realistic chance of occurring before the November 2024 election. Fortunately for President Biden and the Democratic Party, this conviction will not occur at the earliest before two months after T،p has already wrapped up the Republican nomination on March 5 Super Tuesday. 

Since the indictment of the United States vs. Donald J. T،p came down this past August, I have believed that this case would be a slam dunk for Special Counsel Jack Smith and his team of prosecutors, even with the remote possibility of jury nullification vis-à-vis a rogue T،pist juror. 

Up until Monday of this week I still believed that chances were slim that the US Supreme Court would take up a T،p appeal of an appellate court’s decision to affirm (but not deny) Judge Tanya Chutkan’s denial of T،p’s claims of presidential immunity. However, all bets are now off because Smith has asked the “Supreme Court to Decide Whether T،p Is Immune From Prosecution.”

The Special Counsel’s request was unusual because he not only asked the justices to rule before the appeals court, but he also urged them to move with exceptional s،d because the “case presents a fundamental question at the heart of our democ،: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is cons،utionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”

At the same time, I am still concerned that T،p may be able to temporarily freeze the criminal procedures from moving forward, beginning as soon as after the first of the year s،uld T،p succeed with this motion. Smith was obviously concerned by any delays as well because last Friday he filed a motion to prevent that from happening by separating the various procedures such as the mailing of questionnaires to prospective jurors and allowing for up to three weeks for jury selection which has been scheduled for one month before opening arguments are scheduled to begin on March 4. 

Alt،ugh, within ،urs of Smith’s request, SCOTUS responded by requiring T،p and his legal team to respond by December 20, SCOTUS could rule as soon as next month or February and not delay the March 4th s،ing trial date at all or only by a few weeks and still begin by the end of March, or worst-case scenario as late as the end of the 23/24 SCOTUS session in June and the trial then s،ing by late July and conviction before the election. Assuming that the Supreme Court will rule that T،p or any other president is not above the law, I predict an 8-1 ruling with Justice Clarence T،mas dissenting and not recusing himself as he s،uld because of his wife’s involvement on January 6. That would allow the trial to begin by late July with a guilty verdict coming at least one month before the November 2024 presidential election.

 Meanwhile, complying with the existing Court of Appeals limited gag order in his childish and yet effective narrative for the court of Republican opinion, the Projector-in-Chief’s spokesperson had the following to say:

“Crooked Joe Biden’s henchman, Deranged Jack Smith is so obsessed with interfering in the 2024 Presidential Election with the goal of preventing President T،p from retaking the Oval Office, as the President is poised to do, that Smith is willing to try for a Hail Mary by racing to the Supreme Court and attempting to byp، the appellate process.”

While I acknowledge that the prosecutors involved in all four of T،p’s criminal indictments as well as in his $250 million civil fraud case in Manhattan are all experts in their jurisdictional fields of endeavor, I also believe to the chagrin of many that T،p is more than a worthy adversary for any one of them – even with his terribly “self-delt” criminal hand.  

What To Learn From the Recent Special Counsel Filing in the January 6 Saga?

As I explained last week in one of two Salon commentaries, behind T،p’s outlandish motions or court tactics there is a ،ing strategy at work. Back in June I first wrote about Special Prosecutor Smith’s “speaking indictment and the stolen cl،ified do،ents case. As I ،erted, this indictment “hit Mar-a-Lago like a tsunami” and “a reckless criminal has finally met his match.”     

The rest of this ،ysis focuses on the January 6 prosecution and the meaning of Jack Smith’s filing of his 404 (b) notice one week ago that advised the Court and T،p about other crimes and/or bad acts that will be used not as evidence of additional counts to be charged a،nst the former president but for the important purposes of proving T،p’s motive, intent, and knowledge. 

This distinction between the original charges and the additional evidence to be introduced by the prosecution revolves around “intrinsic” versus “extrinsic” evidentiary proofs and establi،ng in this case with the consultation of presiding Judge Chutkan the rules of the evidentiary road that will be followed and are important to both the prosecution and the bench in ،entially vindicating them from any appeal filed by T،p for violating the due process notice of 404 (b). 

If we t،ught we knew a lot about the case from the 2022 House Select Committee investigation of January 6 and/or from the unsealed four-count speaking indictment of T،p, now because of the filing of the 404 (b) notice we have a lot more knowledge of what Smith knows and ،w he intends on using it as part of winning legal strategy.

With respect to procedural due process, Smith is giving everyone involved in the case as well as the general public “extensive advance notice” of the evidence he will introduce at trial, including exhibits, witness lists, pre-trial motions, and a trial briefing of the evidence and issues that are likely to be brought up during the presentation of the government’s case. The substance of Smith’s notice specifically addresses six areas of evidence. 

Briefly, these include:   

• Historical Evidence of T،p’s Consistent Plan of Baselessly Claiming Election Fraud: To prove that T،p knew his claims were false, Smith will offer as evidence statements from T،p claiming that there would be fraud well before the election occurred in 2020. In fact, he plans to introduce statements from T،p claiming fraud in the 2016 election between him and Clinton as well as in the 2012 election between President Obama and Mitt Romney. 
• Historical Evidence of T،p’s Plan to Refuse to Commit to a Peaceful Transition of Power: To prove that T،p planned to remain in power in the face of ،ential violence, Smith will introduce an exchange with a reporter where T،p says that “there won’t be a transition” in power between himself and Biden because “frankly, there’ll be a continuation. The ballots are out of control. You know it.”
• Evidence of T،p and his Unindicted Co-Conspirators’ Knowledge of the Unfavorable Election Results and Motive and Intent to Subvert Them: To prove that T،p knew he was losing at least in Michigan during the counting of the votes, Smith will provide evidence that T،p had knowledge involving an undisclosed (for now) agent of T،p’s and a campaign lawyer of his in Detroit that the votes on the ground were trending in Biden’s favor, and connecting the then president’s willingness in real time to unleash violence as a means of interfering with the vote counting in Detroit. 
• Pre- and Post-Conspi، Evidence T،p and his Co-Conspirators Suppressed Proof Their Claims Were False and Retaliated A،nst Officials W، Undermined Their Criminal Plans: To prove these points about the conspi، to defraud, Smith will present evidence that T،p “repeatedly sidelined advisors and officials w، told him and the public the truth about the results of the election.” And T،p and his co-conspirators also “continued their efforts to stifle any dissent to their false claims of election fraud” involving the Republican National Committee’s Chief Counsel w، allegedly was retaliated a،nst for refuting publicly the lies being told about the election fraud.
• Pre- and Post-Conspi، Evidence of T،p’s Public Attacks on Individuals, Encouragement of Violence, and Knowledge of the Foreseeable Consequences: To prove these points, Smith is going to use T،p’s “established pattern of using public statements and social media posts” subjecting “his perceived adversaries to threats and har،ment. The government will also introduce pre-conspi، evidence that s،ws T،p encouraged violence, such as during one of the 2020 presidential debates where he told the Proud Boys to “stand back and stand by.” As for post-conspi، evidence, Smith’s team will s،w ،w the promotion of violence continued well beyond the period in which T،p is charged, such as when T،p continued to attack two Georgia election workers even t،ugh he had been “on notice that his claims about them in 2020 were false and had subjected them to vile, racist, and violent threats and har،ment.”
• Post-Conspi، Evidence of T،p’s Steadfast Support and Endor،t of Rioters: To prove these points, Smith will introduce evidence that in the years since the January 6 attack on the Capitol, the “defendant has openly and proudly supported individuals w، criminally parti،ted in obstructing the congressional certification that day, including by suggesting that he will pardon them if re-elected.” Smith’s team will also introduce other evidence of T،p’s support for the “January 6 C،ir” composed of inmates, including t،se convicted of crimes for ،aulting the Capitol, as well as including a September 17, 2023, appearance on Meet the Press where T،p referring to the Proud Boys leader Enrique Tarrio w، had been convicted of seditious conspi، said: “I want to tell you, he and other people have been treated terribly” by the Department of Justice.     

What this new information tells us about Smith’s prosecution of T،p for the January 6 obstruction of an official proceeding and conspiring to carry out the obstruction, the violation of civil rights, and the defrauding of government is that these four crimes had nothing to do with some kind of spontaneous protest gone violently astray or with some “inside job” deep state conspi، as claimed by Vivek Ramaswamy at last week’s fourth Republican debate for the presidential nomination. 

On the contrary, the refusal of President T،p to comply with the Presidential Transition Act of 1963 (Public Law 88-277) and to interfere with the certification of President-elect Joe Biden was and continues to be the ،uct of a decade-long mission by the former president to undermine the le،imacy of the U.S. elect، system. 

Lastly, not unlike the filing of the 404 (b) notice that is subject to the due process of law for the purpose of establi،ng the evidentiary rules of the road for the prosecution and the bench, the District of Columbia Court of Appeals’ ruling this past Friday balancing the cons،utional rights of free s،ch and of a fair trial was also a matter of establi،ng the rules of the road for the defendant and his team of lawyers. 

In its ruling, the court affirmed Judge Chutkan’s gag order to prohibit T،p from talking about witnesses relating to their testimony a،nst him and from impugning court personnel and prosecutors carrying out their normal functions, but it exempted Judge Chutkan and Special Counsel Smith from T،p’s unfounded criticisms.   

Gregg Barak is an emeritus professor of criminology and criminal justice at Eastern Michigan University and aut،r of “Criminology on T،p.” His sequel “Indicting the 45th President: Boss T،p, the GOP, and What We Can Do About the Threat to American Democ،,” will be published April 1, 2024.