Did Trump know what was about to happen Jan. 6?

Democracy’s future depends on the stories told of the past. They must be told from facts.

We have important facts about the Jan. 6. insurrectionists Donald TrumpDonald TrumpRealClearPolitics reporter says Freedom Caucus shows how much GOP changed under Trump Jake Ellzey defeats Trump-backed candidate in Texas House runoff DOJ declines to back Mo Brooks's defense against Swalwell's Capitol riot lawsuit MORE incited to invade the Capitol. Some told an FBI informant that they intended to kill Mike PenceMichael (Mike) Richard PenceRealClearPolitics reporter says Freedom Caucus shows how much GOP changed under Trump Want to improve vaccine rates? Ask for this endorsement Live coverage: House panel holds first hearing on Jan. 6 probe MORE and Nancy PelosiNancy PelosiHouse to resume mask mandate after new CDC guidance McCarthy pulls GOP picks off House economic panel GOP up in arms over Cheney, Kinzinger MORE. They reportedly came within 60 seconds of finding Pence

That close call should compel robust criminal investigations — not only to hold accountable all those who entered the Capitol but also to tell us exactly what Trump knew when he gave his speech that morning inciting the rioters.

ADVERTISEMENT

The facts already known do not cast Trump in a good light.

Consider the context: Trump’s increasing desperation on Jan. 6 as the walls closed in on his prospects for holding power.

  • More than 60 courts had rejected Trump’s unfounded legal attempts to overturn the election. 
  • On Jan. 2, Georgia Secretary of State Brad Raffensperger had refused, in an hourlong phone call, to knuckle under to Trump’s pleas to alter the Georgia vote count.
  • On Jan. 3, Trump was stopped from replacing then-acting Attorney General Jeffrey Rosen with Jeffrey Clark, an assistant attorney general working with Trump to overturn Georgia’s election. A threat from the rest of the Justice Department leadership team to resign en masse forced Trump to back down.
  • On Jan. 5, the U.S. attorney in Georgia resigned rather than collaborate in Trump’s attempts to overturn a state election result affirmed in three recounts. 

These facts — along with Trump’s Jan. 6 speech in which he told supporters, “If you don’t fight like hell, you’re not going to have a country anymore,” “You’ll never take back our country with weakness” and “When you catch somebody in a fraud, you’re allowed to go by very different rules” — ought to be evidence enough, we think, to convict him in his imminent impeachment trial.

What is already known to prosecutors is likely also sufficient to indict Trump for his willful efforts to deny Americans’ civil rights by subverting our democracy.

But more is needed.

ADVERTISEMENT

History — as well as competent prosecution — demands that we establish Trump’s knowledge and intent on Jan. 6 so that he is held accountable and we never forget the full extent of what happened. Did Trump, when he addressed his supporters, know what was planned? Did he know the intended risks to the lives of Capitol police, the vice president, the Speaker of the House and others? Did he have enough information before he spoke that he reasonably should have known the likely outcome?

Prosecutors have the tools to obtain that information.

They should consider these leads:

We need a thorough-going investigation to establish the precise depths of the depravity we just endured.

Donald Ayer served as deputy attorney general under George H.W. Bush and as a U.S. attorney and principal deputy solicitor general in the Reagan administration. 

Dennis Aftergut is a former federal prosecutor and Supreme Court advocate, currently a Lawyers Defending American Democracy steering committee member.