On Monday, writing for MSNBC, former federal prosecutors Mike Ferrara and Shawn Crowley, along with attorney Magdalene Zier, argued that the testimony of police who defended that Capitol from the January 6 attack have made a prosecution against former President Donald Trump easier.
"While criminal charges remain unlikely because of the protections afforded to any speaker under the First Amendment and recent court cases that limit the scope of the Anti-Riot Act, the new evidence could help prosecutors to thread the needle," they wrote. "Specifically, the officers' testimony could support the notion that Trump's calls on supporters to reject Congress' certification of the election were not merely the musings of a sore loser but were instead deliberately calculated to instigate violence and further his multifaceted strategy to overturn the election."
The authors also noted that Richard Donoghue's notes saying that Trump demanded the Justice Department "just say the election was corrupt" and "leave the rest to me" could compound the evidence.
"This could be helpful in a criminal case to the extent that it demonstrates that Trump was connected to the outcome of disrupting the election results and taking action to achieve it, rather than just railing against the process," they argue.
The main task coming up for the House committee will be to compel testimony from members of Congress to whom Trump spoke during the riot.
"Ultimately, Anti-Riot Act prosecutions have been too few and too fraught for us to anticipate how a judge might weigh rioters' statements," the authors concluded. "Revelations that rioters acted not just in Trump's name but at his direction could strengthen a criminal case against him — and help the government to heed Capitol Police Officer Harry Dunn's emotional entreaty at last week's opening hearing that we 'get to the bottom' of who was really behind the hateful events of Jan. 6."
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