Commentators watching the January 6th committee’s public hearings have been underwhelmed. While they say the panel has exposed some of former President Trump’s bad behavior, it hasn’t uncovered any convincing evidence of a crime being committed.

Gregory Wallance, an opinion contributor for The Hill, writes:

[Smoking gun] will forever be associated with the Watergate investigation of President Nixon. What became known as the “smoking gun tape” emerged in August 1974 during impeachment proceedings against Nixon in the House of Representatives over the break-in at the Democratic National Committee headquarters in Washington’s Watergate Hotel.

The tape so unequivocally established a conspiracy to obstruct justice that the 10 Republicans on the House Judiciary Committee who had recently voted against impeachment changed their votes. Days after the tape’s release, Nixon resigned rather than face certain impeachment by the House and conviction in the Senate. He avoided indictment only because President Ford pardoned him.

The equivalent evidence in the Jan. 6 investigation would be a tape recording or a credible eyewitness account of Trump, Rudolph Giuliani and Steve Bannon discussing how Trump should use his Ellipse speech on Jan. 6 to make the crowd so angry that it would storm the Capitol as soon as it heard the instruction “We are going to walk to the Capitol.” Nothing like that has been found.

Without smoking gun evidence, Attorney General Merrick Garland and his aides face a difficult decision. The existing evidence that Trump intentionally incited a riot to stop the electoral vote count might be sufficient to persuade a judge to let the prosecution’s case go to a jury. But whether the evidence is strong enough to convict is an open question.

The defense will argue that Trump’s Ellipse speech and later tweets on Jan. 6 never urged violence and that when the president told the crowd to “fight like hell,” he was only exercising his First Amendment rights and using typical political rhetoric, like Joe Biden when he tweeted during the 2020 campaign that “I will continue to fight — like hell.” Biden’s tweet was only about fighting for working class families, and wasn’t made to an armed mob, but that’s what defense attorneys do in a criminal trial.

And Trump would not be a typical defendant because no former president has ever been indicted, let alone by the administration of the opposing political party. A Trump prosecution needs smoking gun-type evidence because an indictment could tear the country further apart, and an acquittal even more. This isn’t a double standard for former presidents but a recognition that prosecutorial discretion must take into account the unique nature of the presidency. 

That’s why it’s significant that the Jan. 6 committee so far has failed to find a smoking gun.

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