Whether charges relating to Jan. 6 will result is unknown, and a congressional committee doesn’t make that decision. But the committee can urge the Justice Department to bring charges. And even if it doesn’t, Cheney’s language suggests the hearings will produce explosive evidence of striking coordination involving Trump, his highest-level allies and the violence on the ground.
Notably, the first hearing emphasized both the horrors of that violence and the extraordinary seriousness of Trump’s behind-the-scenes plotting to remain in power illegitimately. This suggests the hearings will forcefully show that those two elements are part of one continuous story.
We heard that the hearings will show Trump privately declared that Vice President Mike Pence “deserved” to hang as rioters chanted for his execution. We heard Trump had been informed that in pressuring Pence to subvert the count of presidential electors in Congress, he had demanded Pence do something “illegal.”
We heard that the hearings will show that Trump’s top aides told him he’d lost — meaning he knew his effort to cling to power was illegitimate. That multiple Republican congressmen sought pardons from Trump after Jan. 6 — suggesting they worried that working to subvert the election might be illegal. That groups like the Proud Boys plotted in advance to “invade” the Capitol.
The charge of “seditious conspiracy” requires prosecutors to prove that at least two people conspired to use force to overthrow the government, oppose its authority or subvert the execution of a U.S. law. Such charges have been brought against some of the Proud Boys and Oath Keepers.
By floating this notion at Thursday’s hearing, the committee seems to be telegraphing that it intends to build a case that Trump, his co-conspirators or both also engaged in seditious conspiracy. So what might that look like?
Thursday’s hearing suggests several possibilities, experts tell me. One is that the committee hopes to show that Trump and/or his inner circle conspired with the Proud Boys or others to use intimidation or violence to pressure Pence to subvert Congress’ electoral count (which is the execution of a law). Trump had been informed this would be “illegal” on Pence’s part.
Note that Rep. Bennie Thompson (D-Miss.), chair of the committee, told CNN after the hearing that evidence would emerge of direct communications between those groups and people around Trump.
“Given what we know about the Proud Boys and Oath Keepers, the moment you have communication between them and Trump’s inner circle, things get much more serious,” Alan Rozenshtein, a law professor at the University of Minnesota, told me.
“That is the sort of actual concrete evidence that goes directly to the question of seditious conspiracy,” Rozenshtein said.
Another possibility centers on Trump’s decision to allow the violence to rage for over two hours without putting out a statement calming it, even as some Republicans and his own top aides frantically urged him to do so.
In this scenario, the seditious conspiracy might involve Trump and his co-conspirators agreeing to let the violence continue expressly to pressure Pence and GOP lawmakers to do Trump’s bidding and delay the electoral count. Recall that Trump and his lawyer Rudy Giuliani urged at least one GOP senator to stall the proceedings while the violence unfolded.
Rozenshtein says this could rise to seditious conspiracy, though it would depend on what exactly Trump’s allies said and did, and noted it would be hard to prove. On the other hand, Rozenshtein said, the law has never been tested in this way: “We’ve never had anything like this.”
Still another possibility might be that Cheney used that language not to telegraph a detailed legal case to come, but to signal the dire seriousness of Trump’s scheme. That, too, strongly suggests that the story the committee plans to tell is extraordinarily grave.
“Seditious conspiracy is, at least rhetorically, basically the most serious offense in the U.S. code after treason,” Rozenshtein told me. “To imply there’s any basis that a sitting president committed that would be the most consequential indictment of a politician since the Civil War.”
Ultimately, what’s really striking about all this is the message it seems designed to send to the public. Whatever the Justice Department ends up doing, the committee appears prepared to tell a story that educates the American people in preparation for the very worst.
And it’s no accident that in Cheney, the committee chose a Republican to begin laying this groundwork. This way the extraordinary gravity of the revelations cannot be dismissed as “partisan.”
“She’s sensitizing the public,” Jeffrey Ian Ross, a criminologist at the University of Baltimore, told me, noting that Cheney is a “forceful” messenger for these “very damning charges.”
The message Cheney and the committee are sending, Ross said, is a blunt one: “Be prepared. Be prepared.”