The evidence the special prosecutor has against Trump for Jan. 6 explained by former DOJ lawyers

Watergate prosecutor Jill Wine-Banks and Robert Mueller prosecutor Andrew Weissmann joined Jen Taub's podcast "Booked Up" podcast Sunday to discuss possible charges against Donald Trump. The full report, interviews and supplemental materials fully released by the House Select Committee investigating the Jan. 6 attack and the attempt to overthrow the 2020 election, and it's drawing speculation from the legal community about the case against Trump.

The case made by the Congressional committee was handed over to the Justice Department at the end of last year and Attorney General Merrick Garland tasked a special prosecutor with navigating both the Jan. 6 case against Donald Trump and the stolen White House documents case as well.

Weissmann recalled his attempt to try Vincent Gigante, who was part of the Genovese crime family in New York. Gigante went by the nickname "The Chin," and would spend his time running around Greenwich Village in a bathrobe, acting insane so that he could claim that he wasn't competent to stand trial. When to him or about him, he required that they gesture to their chin so as not to say his name and be captured on a wire. Trump similarly doesn't use email or text messages to avoid having evidence that could be linked to him.

So, one of the ways investigators caught him was to have someone use Gigante's name to see what would happen. Once his name was mentioned, he was immediately chastised and told never to use his name again. It proved to be the evidence necessary to link Gigante more directly to the evidence. He ended up behind bars until his death in 2005.

It's a lot like Trump's case in that there's not a ton of "direct" evidence about him, Weissmann explained.

So, when it comes to Trump's case, he can claim that it was just his foot soldiers acting independently of him.

"Just because you’re the person who incited it doesn’t mean you’re not just as responsible” as those who committed the violence, Weissmann said.

Taub asked Weissmann what he would say in the closing argument while prosecuting Trump for Jan. 6. He said simply that any person would be prosecuted for doing what Trump did.

"And you know that because everyone who went to the Capitol, the foot soldiers, were prosecuted," he continued. "It doesn't matter what their motive was. It doesn't matter if they thought they were doing it for Trump. It doesn't matter if they thought it was some other conspiracy theory. It's not about politics. It's about their actions and their intent."

He went on to say that he anticipates that there will be a considerable amount of evidence available to the DOJ that was known publicly. For one thing, he highlighted that there were many people who pleaded their Fifth Amendment rights against self-incrimination. Those people could be given immunity by the DOJ. Anyone claiming executive privilege previously will have to testify to the grand jury.

In terms of the charges, Weissmann said that the insurrection charge isn't something to blink at, but obstructing Congress is a significant charge. Connecting Trump more directly to the Oath Keepers and Proud Boys militias is going to be key, and those pieces are "they're just not fleshed out" yet.

Kevin McCarthy also testified that on the call with Trump, the former president blamed Antifa for the attacks and McCarthy responded, "Who do you think you're talking to?"

"That's such great evidence because it's his falsely claiming who's there and you know that's not the case. So why would you be doing that unless you encouraged and wanted this to happen," Weissmann closed.

When Wine-Banks addressed the case, she said that one of the biggest problems is calling this "Jan. 6". when the efforts began long before Jan. 6 and even before the 2020 election.

While she agreed that the obstruction charge is important, she pointed out that one of the key things that the insurrection charge does is that it prevents Trump from ever holding office again.

Weissmann wondered if the DOJ would bring that charge but not seek that piece as a remedy so as not to appear political. Wine-Banks said that the Constitution must be protected. She recalled in the Paul Manafort trial that even the most loyal Trump supporter on the jury acknowledged that despite their support of the president, the law is the law, and he still supported Trump even though he agreed that the laws were broken.

"So I think the case is pretty strong. There would be a conviction and the remedy has to be what is set forth. And, you know, do I think the president should go to jail? Well, I think that he deserves to go to jail. Do I think he will go to jail? No, I don't. I think it's unseemly. But I do think he could be barred from running for office."

She went on to say that it seems Trump is doing everything he can to lose anyway, calling his campaign "pathetic."

Listen to the full podcast here.