A Day of Bombshells

Shortly before the January 6 Committee began its hearings, we told our editorial writers to keep a weather eye out for violations by the committee of the constitutional prohibition against bills of attainder. Trying individuals is one of the most emphatic prohibitions the Constitution lays on Congress. However, we said, be alert for the possibility that, while abusing constitutional due process, the January 6 Committee could come up with a bombshell.It looks like that has just happened, with the Committee’s disclosure today of evidence suggesting that President Trump was aware some of the protesters were armed yet tried to order the removal of metal detecting equipment at his rally. It also presented testimony that Mr. Trump tried to order his Secret Service driver to take him to the Capitol, even while it was under attack, going so far as to try to yank the steering wheel out of the driver’s control.The arresting image of Mr. Trump attempting to commandeer the wheel of his vehicle, only to be overruled by his security guard, also raises questions about the role of the Secret Service in determining the events that day. By preventing Mr. Trump from reaching the Capitol, did that agent extra-constitutionally shield the Congress from further damage? Or was he insubordinate? Might the President have sought to calm the rioters?Then, too, there’s the question of whether it happened. The chief White House correspondent of NBC, Peter Alexander, put up on Twitter a cautionary note. “A source close to the Secret Service tells me,” he wrote, that “both Bobby Engel, the lead agent, and the presidential limousine/SUV driver are prepared to testify under oath that neither man was assaulted and that Mr. Trump never lunged for the steering wheel.”Ms. Hutchinson responded that she testified under oath about what she was told. She encouraged others to do the same. Her report offers what, if true, would be breath-taking glimpses of the President as the riot was unfolding at the Capitol and mobs were roaming its corridors, some calling out for the Vice President to be hanged. The disclosures make it look as if Mr. Trump didn’t care what damage the mob did, because they weren’t against him.“They’re not here to hurt me,” Mr. Trump reportedly said. No doubt all this will energize those who want to see this end in a criminal trial of Mr. Trump. They are not, though, enough to justify sweeping aside the rules of due process. After all, many of the most startling vignettes presented on Tuesday by the former White House aide, Cassidy Hutchinson, were recounted second-hand. Some constitute hearsay, which might not be admissible in court. No one has been cross-examined.In respect of due process, we have several times marked our concerns, including in an editorial called “Congress Seeks To Make a Ham Sandwich Out of Donald Trump.” While it isn’t our intention to defend Mr. Trump’s doings on January 6, we are shocked at the absence of due process in the Committee’s methods. These shortcomings vindicate the Founders’ fears of “trial by legislature.”The morning after the riot at the Capitol, we called upon President Trump to take responsibility for the events he inspirited. However, by being impeached and then acquitted by the Senate — found to be “not guilty” — Mr. Trump had something like his day in court, and won. That trial is probably invisible in the law’s eyes, but we are not insensate that stacking today’s proceeding on top of his acquittal, not to mention the potential of a criminal trial to come, offends the spirit of the Fifth Amendment. As the shockwaves of Ms. Hutchinson’s testimony reverberate, we endeavor to see clearly the affronts of Mr. Trump while also standing on firm constitutional bedrock. If the primary evil of that day was a conflagratory attitude towards the institutions of democracy, its remedy is found in the norms animating those very same institutions. It would be a tragedy to compound the debacle of January 2021 with an unconstitutional rush to judgment. ________This editorial has been expanded from the bulldog.

A Day of Bombshells

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