The January 6th Select Committee’s public hearings have now culminated in a subpoena to former President Donald Trump. It is historic: although current and former presidents have been subpoenaed before, this has never happened in the face of such extraordinary evidence of presidential criminality. The text of the subpoena and cover letter read like a bill of particulars, and close observers know that its allegations are carefully written to track the evidentiary record produced by the committee’s work including the last two hearings.
In this latest edition of our January 6th Hearings Criminal Evidence Tracker, we add the evidence set forth in the eighth and ninth hearings to our prior inventory. The eighth hearing focused almost entirely on Trump’s failure to act to protect the Capitol in the hours following his rally. The ninth hearing was more broad ranging, providing key details about Trump’s intent and knowledge both before January 6 and on the day itself—as well as presenting some of the more damning evidence from a recently obtained cache of records from the United States Secret Service.
With this update of the tracker we have now cataloged the substantial new evidence all nine hearings have derived in support of the subpoena—and of possible criminal charges against Trump. The tracker is available below and as a PDF.
The Eighth Hearing
The committee’s eighth hearing featured a wide range of witnesses, both live and in recorded depositions and interviews. Those witnesses provided a striking account of Trump’s recalcitrance to make a public statement telling his supporters to leave the Capitol. That account is made all the more remarkable by evidence the committee presented that many close associates and others were imploring him to act. Many of those pleas were made to Trump’s Chief of Staff, Mark Meadows. Others were communicated to Trump directly.
Perhaps the most extraordinary communication of that kind concerned a reported conversation between House Minority Leader Kevin McCarthy (R-Calif.) and Trump. According to Rep. Jaime Herrera Beutler (R-Wash.), Rep. McCarthy told Trump, “You have got to get on TV, you’ve got to get on Twitter, you’ve got to call these people off.” Trump’s response was reportedly flippant. Trump allegedly told Rep. McCarthy that the rioters weren’t “his people”—saying instead they were Antifa. Rep. McCarthy doubled down on his plea, telling Trump he was wrong and describing the chaotic scene around him. Rioters “literally just came through my office windows and my staff are running for cover,” Rep. McCarthy reportedly told Trump. But Trump was apparently unmoved. According to Rep. Herrera Beutler, Trump changed his explanation, conceding the rioters were his supporters, but now actually justifying their actions: “Well, Kevin, I guess they’re just more upset about the election, you know, theft than you are.”
Others practically begging Trump to issue a statement reportedly included Donald Trump Jr. and Fox News personalities. Trump Jr. texted Meadows at 2:53 p.m., “He’s got to condemn this shit ASAP. The Capitol Police tweet is not enough. … This is one you go to the mattresses on. They will try to fuck his entire legacy if this—on this if it gets worse.” Laura Ingraham texted Meadows at 2:32 p.m., saying, “The president needs to tell people in the Capitol to go home.” Sean Hannity texted Meadows at 3:31 p.m. asking for Trump to make a statement “telling the rioters to leave the Capitol.” Brian Kilmeade texted at 3:58 p.m.: “Please get him on tv. Destroying every thing [sic] you guys have accomplished.”
The committee also presented evidence that there was no possible justification for Trump’s inaction. Testifying live, former Deputy White House Press Secretary Sarah Matthews said that “he could have been on camera almost instantly” and that, if he wanted to make an address from the Oval Office, the White House could have assembled the “press corps probably in a matter of minutes to get them into the Oval for him to do an on camera address.” In a recorded interview, former White House Counsel Pat Cippollone said it would have been possible “at any moment” after learning of the attack on the Capitol for Trump to “walk down to the podium in the briefing room” and issue a statement. Yet despite arriving in the Oval Office at 1:25 p.m., Trump remained in his private dining room until after 4:00 p.m. watching Fox News, according to Rep. Elaine Luria (D-Va.) and others.
The actions Trump reportedly took during that multi-hour period of time are further evidence of criminal intent. The committee provided evidence that Trump spent that time attempting to persuade legislators—who were at the time under attack—to further delay the electoral count. The committee played a television interview with Sen. Tommy Tuberville (R-AL), in which he stated he spoke to Trump during the siege. According to Tuberville, he told Trump that “we’re not doing much work here right now because they just took our Vice President out. And matter of fact I’m gonna have to hang up on you. I’ve got to leave.”
The Ninth Hearing
In its ninth and possibly final hearing, held on October 13, the committee’s new evidence focused on demonstrating that Trump knew he lost the election and that he knew of the risk of violence in advance of January 6, while also presenting newly obtained records from the U.S. Secret Service. Several witnesses in recorded interviews recounted statements by Trump in which he acknowledged he lost the election. Recalling a conversation with Trump after the election, Chairman of the Joint Chiefs of Staff Gen. Mark Milley said Trump told him “words to the effect of, ‘yeah, we lost. We need to let that issue go to the next guy,’ meaning President Biden.” Alyssa Farah, White House Director of Strategic Communications and Assistant to the President under Trump, testified in a recorded interview that a week after the election, Trump “was looking at the TV, and he said, ‘Can you believe I lost to this effing guy?’”
Recorded testimony from Cassidy Hutchinson—the star witness in the committee’s sixth hearing—was also played to provide evidence that Trump knew he lost. Hutchinson testified that she was present with Mark Meadows and Trump in December 2020. According to Hutchinson, Trump said to Meadows “something to the effect of, ‘I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don’t want people to know that we lost.’” Hutchinson said that on another occasion, Meadows had told her, “You know, a lot of times he’ll tell me that he lost, but he wants to keep fighting it. He thinks that there might be enough to overturn the election, but you know, he pretty much has acknowledged that he lost.” Immediately after the Jan. 2 call with Georgia’s Secretary of State Brad Raffensperger, Meadows allegedly told Hutchinson, “Cass, you know, he knows it’s over. He knows he lost, but we’re going to keep trying. There’s some good options out there still.”
The committee also presented evidence that Trump took official actions that suggested he knew he had lost the election. Keith Kellogg (National Security Advisor to Pence), Douglas Macgregor (former Senior Advisor to the Acting Secretary of Defense), John McEntee (former Director of the Office of Presidential Personnel), and Milley all testified in recorded interviews that Trump signed a memo on November 11, 2020, ordering that troops be withdrawn from Afghanistan and Somalia. Rep. Adam Kinzinger (R-Ill.) summarized the import of the memo: “Keep in mind the order was for an immediate withdrawal. It would have been catastrophic. And yet, President Trump signed the order. These are the highly consequential actions of a President who knows his term will shortly end.”
Other evidence that Trump was aware of the risk of violence on January 6 was also presented. According to Rep. Adam Schiff (D-Calif.), “Days before January 6, the President’s senior advisers at the Department of Justice and FBI, for example, received an intelligence summary that included material indicating that certain people traveling to Washington were making plans to attack the Capitol. This summary noted online calls to occupy federal buildings, rhetoric about invading the Capitol building, and plans to arm themselves and to engage in political violence at the event.”
The committee also presented a substantial amount of material from the Secret Service that had not previously been available as to their advance assessment of the risks that would be present on January 6. Although it is not clear how much of this was relayed to Trump, it seems likely he was briefed on at least some of the reports. In a Secret Service report dated December 26, 2020, the FBI had received a tip that the Proud Boys planned to march armed into D.C. with enough people to “outnumber the police so they can’t be stopped.” The source said that “their plan is to literally kill people.” On December 30, 2020, the Secret Service received reports about a spike of violent rhetoric on the social media platform Parler. A December 31, 2020, Secret Service intelligence briefing circulated reports that Trump’s supporters had proposed a movement to occupy Capitol Hill. On January 5, the Secret Service flagged a social media account that threatened to bring a sniper rifle to the January 6 rally, posting a picture of a handgun and rifle. Later that day, the Secret Service learned during an FBI briefing that “right-wing groups were establishing armed QRFs or quick reaction forces readying to deploy for January 6th.” Also on January 5, the Secret Service received alerts regarding threats to Pence, and to storm the Capitol “if he doesn’t do the right thing.”
Other evidence from the Secret Service concerned the agency’s knowledge of, and reaction to, the events on January 6. Beginning with Trump’s rally that morning, the Secret Service reportedly was aware of a number of threats. Rep. Schiff stated that the “documents we obtained from the Secret Service make clear that the crowd outside the magnetometers was armed and the agents knew it.” Early morning reports from the Secret Service documented “ballistic helmets, body armor, carrying radio equipment, military grade backpacks ,” as well as “pepper spray, and … plastic riot shields.” At 11:23 a.m., agents reported “possible armed individuals, one with a glock, one with a rifle.” In the following hour, the Secret Service reported two additional armed individuals in the area. “With so many weapons found so far, you wonder how many are unknown,” one agent wrote at 12:36 PM, “Could be sporty after dark.” At 12:47 PM, another agent responded, “No doubt. The people at the Ellipse said they are moving to the Capitol after the POTUS speech.”
Additional Secret Service records document Trump’s attempts to join his supporters at the Capitol, further supporting the testimony of Hutchinson and Sgt. Robinson in prior hearings. According to a 1:19 p.m. email from Secret Service leadership, they raised concern Trump would engage in an off the record movement to the Capitol. Rep. Pete Aguilar (D-Calif.) noted the Secret Service evidence “shows how frantic this hour must have been for the Secret Service, scrambling to get the president of the United States to back down from a dangerous and reckless decision that put people in harm’s way.”
Finally, the committee provided evidence that Trump made plans to question the integrity of the election before it took place. Specifically, that scheme apparently occurred in reference to mail-in ballots. Testimony from Jared Kushner and Bill Stepien noted that advisors had told Trump that mail-in votes would help him. Trump reportedly rebuffed this advice—perhaps strategizing that he could more easily claim mail-in ballots were fraudulent if he repudiated them. Rep. Zoe Lofgren (D-Calif.) noted at the hearing that because of this strategy, it was expected that votes cast on election day would “would be more heavily Republican and this would create the false perception of a lead for President Trump, a so-called red mirage” that Trump could then claim on election eve was dispositive, which is what he attempted.
What Happens Next?
Taken together, the evidence from the nine hearings is staggering in its moral indictment of Trump. Whether a criminal indictment of Trump is forthcoming is somewhat less clear. At this stage, the committee has gathered more than enough evidence to make a criminal referral for Trump and several of his top advisers. The Justice Department certainly can act even without such a referral. And that’s all based only on the publicly available information we have now. The committee reportedly obtained millions of documents and interviewed more than 1,000 witnesses as part of its investigation. It remains to be seen what will ultimately be included in the committee’s report and just how much evidence against Trump remains behind closed doors. The Committee has certainly substantiated its subpoena to Trump. It remains to be seen whether he will cooperate, defy it, or go to court to litigate. Because the permutations are so numerous it is difficult to predict what the outcomes will be. We will be watching closely and will update our analysis as needed.
We will continue to update our charts in the event of any future developments in relation to the subpoena or the hearings. In the meantime, the current editions are provided below and as a separate PDF.
Readers may also be interested in synopses that accompanied each of the earlier editions following those public hearings, including: the initial introduction as well as introductions to the second, third, fourth, fifth, sixth, and seventh updates.
The January 6th Hearings a … by Just Security