ORANGE IS THE NEW ORANGE:

I confess that I've been skeptical that the January 6 committee would produce evidence that Donald Trump was directly criminally responsible for the attack on the Capitol. Certainly he was morally and politically responsible. There's no credible argument that a mob would have stormed the Capitol if he had the basic decency to concede a race he clearly lost. 

At the same time, it's legally quite difficult to hold a politician responsible for the violence of his followers. The First Amendment is broadly protective even of political speech that outright advocates violence. There is (rightly) a very high constitutional barrier to criminally prosecuting any person for allegedly inciting violence. After all, the primary responsibility for a riot rests with the rioters--in the absence of direct command authority (like a general commands his troops), nobody can make a person riot. 

Before today, I've been open to the possibility that Donald Trump's speech and conduct on and before January 6 criminally incited the mob. I was open, but unconvinced. I spoke to a number of leading First Amendment experts, and they were even less open than me. Yes, Trump urged the mob to "fight like hell" and march on the Capitol, but he also said they should "peacefully and patriotically" make their voices heard. That caveat was likely enough to spare him from prosecution.

That was yesterday's analysis. Today's is different. Because of a courageous woman named Cassidy Hutchinson, a former aide to Mark Meadows. 

Earlier this afternoon she gave the most extraordinary congressional testimony I've ever seen. She testified that the president was so committed to walking to the Capitol with his own supporters that he allegedly tried to grab the wheel of his Secret Service vehicle. She painted the picture of a president utterly out of control, a man so committed to preserving his own power that he approved of the riot and believed that Mike Pence deserved to face mob justice. 

But the most legally significant testimony came in a few key sentences:

Hutchinson claims she overheard Trump say about the crowd, "You know, I don't effing care that they have weapons. They're not here to hurt me. Take the effing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the effing mags away."

As Jake Tapper noted, the "mags" refer to magnetometers deployed to keep armed individuals away from the president. 

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