Trump Is Not Above The Law; Indict, Try And Convict Trump For Inciting Riot, Obstructing An Official Proceeding, Conspiracy To Defraud The United States, Seditious Conspiracy and Obstruction Of Justice; Examining The Evidence And Charges

On July 21, the 8th publicly televised hearing of the US Congressional investigating the January 6 capitol riot was held. The committee is not expected to issue it final report for a few more months. The biggest question that hovers over the committee is whether or not it will refer the entire matter to the US Department of Justice to indict Donald Trump and others for sedition.


The facts amassed by the House select committee are damning and reflect a President so desperate to hold onto power to the point that he and his staunches supporters did everything they could do to stop the peaceful transition of power by promoting the great lie that the election was rigged to the point of orchestrating a violent and deadly attack on congress. The evidence presented and revealed during the 8 hearings are overwhelming with many elected Republicans, such as Senator Josh Hawlings and Representatives Jim Jordon, becoming active participates.

Following are the undisputed facts that can be gleaned for the 8 hearings:

Trump could have harbored no doubt that he lost the election and lost it resoundingly. This fact was driven home to him repeatedly by Attorney General William Bar, senior Justice Department officials, White House lawyers and his own campaign team who made it clear to him he lost the election and there was no evidence to support his contention that there was widespread election fraud. In fact, 50 out of 51 lawsuits were dismissed by the federal courts finding there was no election fraud.

Trump repeatedly pressured state officials to support his scheme to overturn the election. The best examples was when he made the call to Georgia Secretary of State Brad Raffensperger to “find” the necessary number of votes to win the state and his pressure on Arizona House Speaker Russell “Rusty” Bowers to support a slate of phony electors.

Trump’s TWEET to come to Washington on January 6, 2021 where he said “Be there, will be wild”, was the desperate culmination of his frustrated attempts to forestall the vote counting by other means.

Trump secretly plotted to urge his supporters to march on the Capitol January 6 and it was no ad-libbed invitation but a premeditated, closely held plan to assault the capitol and stop congress from voting to certify the election of Joe Biden.

It was made clear from testimony from Trumps own appointed officials across the administration, including White House Chief of Staff Mark Meadows and Director of National Intelligence John Ratcliffe, that violence was feared as erupting on January 6. White House aide Cassidy Hutchinson said it best when Mark Meadows warned “Things might get real, real bad on January 6!”

Trump wanted to join the mob on January 6 in marching on the Capitol, perhaps even lead the charge into the capitol, and that this was his plan all along. Trump’s own White House Council believed this would be “legally a terrible idea for us” and that Trump became was enraged when he was prevented by the Secret Service from going to the capitol but instead returned him to the White House.

Trump was fully aware that some of the supporters he urged to go to the Capitol and “fight like hell” were heavily armed.

When rioters breached the Capitol, Trump was watching the event unfold on TV in the White House and the he was content not do anything to stop the rioters. Chief of Staff Mark Meadows told White House Counsel Pat Cipollone “He doesn’t want to do anything, Pat.” Claims made by Trump’s lawyers during his second impeachment that he “like the rest of the country, was horrified at the violence” were simply a lie.

Trump was totally unfazed by the chants to “hang Mike Pence” and in fact said he thought Pence deserved that fate for resisting his pressure not to certify the electoral college vote.

It was a lie when Trump impeachment lawyer Michael van der Veen said the evidence presented showed that “at no point was the president informed the vice president was in any danger”. Trump was told but he did not care if Pence was in danger of physical harm. The evidence was clear how close Pence got to being harmed with his own security detail so concerned for their lives they started making calls to their families to say goodbye.


Towards the end of the July 21 congressional hearing, the committee presented evidence of what Trump’s plan was all along if he lost the election, which was to declare victory and engage in the big lie that he won the election.

On July 12, the online news agency Mother Jones reported that on the evening of October 31, 2020, Steve Bannon told a group of associates that President Donald Trump had a plan to declare victory on election night, even if he was losing. Bannon explained Trump knew that the slow counting of Democratic-leaning mail-in ballots meant the returns would show early leads for him in the battleground states. It’s commonly referred to as the “red mirage” where early votes first show the Republican winning only to lose after absentee votes are counted.

According to audio of the meeting obtained by Mother Jones, Steve Bannon while laughing, told the group of business executive that Trump’s “strategy” was to use the “red mirage” to assert that he had won the election while claiming that the inevitable shifts in vote totals toward Joe Biden must be the result of fraud. Bannon is heard as saying:

“What Trump’s gonna do is just declare victory. Right? He’s gonna declare victory. But that doesn’t mean he’s a winner. … He’s just gonna say he’s a winner. … He’s gonna declare victory. But that doesn’t mean he’s a winner. … As it sits here today … at 10 or 11 o’clock Trump’s [when Trump is leading, he’s] gonna walk in the Oval, tweet out, ‘I’m the winner. Game over. Suck on that.'”

On July 22, Steve Banon was convicted of 2 counts of Contempt of Congress by a jury of 9 men 3 women. Each count carries a minimum of 30 days and a maximum of one year in jail, as well as a fine. The jury returned a verdict after deliberating for less than three hours. Bannon is expected to be sentenced on October 21.


Trump’s plan to falsely declare victory while tens of millions of votes were still being counted was public knowledge even before the election. The online news agency Axios reported on the scheme at the time. Steve Bannon, one of Trump’s closest advisors, himself discussed the idea on election day November on his War Room podcast.

Weeks earlier, Bannon had interviewed a former Trump administration official who outlined how Trump would use allegations of fraud to dispute an electoral defeat and would seek to have Congress declare him the winner. The congressional committee investigating January 6 detailed how Rudy Giuliani convinced Trump to go ahead with a victory declaration after 2 a.m. on November 4, over the objections of campaign staff. “Frankly, we did win this election.” Trump insisted in news conference.

The link to quoted news source material is here:


The criminal statutes that Trump violated include 18 U.S.C. Section 1512(c), which applies to anyone who “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” Section 18 U.S.C. Section 371 also would apply which prohibits conspiracy “to defraud the United States”. Such defrauding includes efforts to obstruct “the lawful functions” of any department of Government.


There are at least 5 federal charges Trump can and should be prosecuted for and those charges are:

1. Obstructing an official proceeding of the United States Congress and the certification of the election.

2. Incitement of a riot by encouraging the crowed to march on the capitol.

3. Conspiracy to defraud the United States

4. Seditious conspiracy

5. Obstruction of justice


The biggest hurdle federal prosecutors will have to deal with in criminally charging Trump is proving his “state of mind”. Trump’s defense will no doubt be that what he said to the crowd on January 6 was protected “free speech”. Courts have routinely set this bar very high in the context of political speech because the First Amendment broadly protects speech of that type.

It is well settled case law that only incitement to “imminent unlawful action” is sufficient. It must be shown that the speaker had to know that the crowd would immediately break the law. A political statement by the President of the United States will be viewed as protected by the First Amendment, most likely by the current United States Supreme Court, but even they cannot ignore concrete evidence, action and admissions revealing state of mind.

In order to convict Trump of criminal charges, federal prosecutors will be required to prove “beyond a reasonable doubt” that Trump had the “corrupt” state of mind. That burden of proof applies to the charges of inciting a riot and obstructing an official proceeding of the United States Congress.

The most damaging testimony of Hutchinson that eviscerates any defense of free speech is when Trump said he didn’t “fucking” care that they had weapons. Trump proclaimed “They’re not here to hurt me”. Trump was repeatedly warned that there could be violence, he knew the crowd was armed. Trump went so far as to order the metal detectors removed from the area so that his supporters could listen to his speech without being disarmed first by the secret service.

Hutchinson’s testimony was a firsthand account of the events as they unfolded and reveals for the first time Trump’s state of mind that would be admissible in court against Trump on the charge of inciting a riot. Hutchinson testified repeatedly that she was present during conversations Trump had with Trumps Chief of Staff Mark Meadows and others and she took notes.

Hutchinson testified that Trump clearly announced his disregard for potential violence by his supporters, and she heard firsthand from people who described the president’s anger at being told he could not lead his followers on their march to the Capitol where the presidential vote was to be certified.

Hutchinson’s testimony was clear that Trump wanted to go to the capitol that day after his speech where he inflamed the crowd to march on the capitol and became angry and said “I’m the fucking president” when told by secret service he could not go because it was too dangerous. Simply put, this testimony was the “smoking gun” needed to prove that the person speaking meant to incite imminent violence.

What is clear is that Trump knew the crowd was armed, he ordered that metal detectors not be used to keep his supporters out that he had summoned and were there to hear him speak. Trump was warned repeatedly of the potential violence. Once the crowd was assembled, Trump inflamed them to march to the capital to stop the congress from certifying the election. The angry mob Trump inflamed did his bidding and stormed and vandalized the United States Capitol. What is even more clear is that Trump wanted to go to the capitol himself to lead the charge invading the capitol building.


In a March 2 filing, the committee said it was likely that Trump and others conspired to defraud the United States, which criminalizes any effort by two or more people to interfere with governmental functions “by deceit, craft or trickery.”

In addition to Trump’s efforts to pressure Pence, the committee cited his attempts to convince state election officials, the public and members of Congress that the 2020 election was stolen, even though several of his allies told him there was no evidence of fraud.

According to video testimony shown on Tuesday, June 28 by the committee from Kayleigh McEnany, Trump’s White House press secretary at the time, Trump was so enraged by then-Attorney General Bill Barr’s interview with the Associated Press saying there was no evidence of election fraud that Trump threw his lunch at the wall, breaking a porcelain dish and leaving ketchup dripping down the wall.


Prosecutors already have charged more than a dozen members of the far-right Proud Boys and Oath Keepers groups who were at the January 6 riot with seditious conspiracy, a rarely used statute that makes it illegal to overthrow the U.S. government by force. To prove seditious conspiracy, prosecutors would need to show Trump conspired with others to use force. Cassidy Hutchinson is consistent with that theory when she testified about others organizing the riot with Trumps approval and his knowledge on the day of the riot that the mob was indeed armed.


At the end of Hutchinson’s testimony, Representative Liz Cheney, a Republican, presented possible evidence of witness tampering and obstruction of justice. Cheney showed messages to unidentified witnesses advising them that an unidentified person would be watching their testimony closely and expecting loyalty.

If the committee has evidence that the people who sent the messages had a “tacit understanding” with Trump, prosecutors could use it to show there was a conspiracy to tamper with witnesses said Daniel Medwed, a law professor at Northeastern University in Boston. Medwed had this to say:

“They were setting the table for witness tampering and likely have other witnesses coming in to nail that down.”

No matter what the law says or what the facts reveal, the Department of Justice attorneys must prove all the elements of a crime against Trump beyond a reasonable doubt before a jury. There is no doubt if Trump is indicted, he will defend what he has said and did in public as protected free speech. Applying the elements of the crimes to the conduct of a president who would argue that he was acting in the exercise of his official duties will no doubt raise complicated questions of constitutional law that will require court rulings.


“On Sunday, July 17, it was widely reported that that former President Donald Trump has made up his mind about running again and that he may announce a 2024 run for president as soon as September in the hopes of shielding himself from criminal prosecution. On July 19, Lisa Monaco, the Justice Department’s second-ranking official, rejected the idea that Trump becoming a formal candidate would deter DOJ from investigating him. In response to that very question, Monaco stated bluntly:

“We’re going to continue to do our job, to follow the facts wherever they go, no matter where they lead, no matter to what level … We’re going to continue to investigate what was fundamentally an attack on our democracy.”

And on Wednesday July 20, Attorney General Garland himself reiterated at a news conference, responding to a question about the prospects of charging Trump, that “no person” is above the law. Garland echoed Monaco’s sentiment and said this:

“We have to hold accountable every person who is criminally responsible for trying to overturn a legitimate election, and we must do it in a way filled with integrity and professionalism.”


On July 26, in a remarkable one-on-one interview of Attorney General Merrick Garland, NBC News anchor Lester Holt asked the question if prosecuting former President Donald Trump for inciting the Jan. 6 Capitol attack might “tear the country apart”.

Holt said to Garland during their interview:

“You said in no uncertain terms the other day that no one is above the law. That said, the indictment of a former president, or perhaps candidate for president, would arguably tear the country apart. Is that your concern as you make your decision down the road here, do you have to think about things like that?”

Attorney General Garland responded:

“Look, we pursue justice without fear or favor. We intend to hold everyone, anyone who was criminally responsible for the events surrounding Jan. 6, for any attempt to interfere with the lawful transfer of power from one administration to another, accountable. That’s what we do.”

Garland added the Justice Department will not pay “any attention” to “other issues” aside from its mission to pursue justice.

Holt then asked:

“So, if Donald Trump were to become a candidate for president again, that would not change your schedule or how you move forward or don’t move forward?”

Garland responded:

“I’ll say again that we will hold accountable anyone who is criminally responsible for attempting to interfere with the transfer, legitimate, lawful transfer of power, from one administration to the next.”


“Adding to Trump’s concerns that the DOJ will charge him even as a declared candidate are the 2018 indictments of two congressional candidates just a few months before that year’s midterm elections. Rep. Chris Collins, R-N.Y., was charged with various crimes connected to allegations that he had engaged in insider stock trading. Weeks later, DOJ announced a host of criminal charges against Rep. Duncan Hunter, R-Calif. connected to his use of campaign contributions to fund a lavish lifestyle, which included trips to Italy, Hawaii and London. Both were locked in re-election battles in a year Democrats were expected to (and did) pick up House seats and win back control of the House.

Hunter initially took a page from Trump’s playbook by describing his charges as “politically motivated” and claiming to have been unfairly targeted by the “new Department of Justice” and “the Democrats’ arm of law enforcement.” Despite the protestations of their innocence and their assertions to fight charges they called meritless, Collins and Hunter later pleaded guilty and resigned from Congress. Duncan was sentenced to 11 months in prison and Collins to 26 months.

Trump can announce that he’s running whenever he wants to but as recent history tells us, DOJ would not be prevented from prosecuting him for any potential crimes, even if primary elections or a general election are approaching.”

The links to quoted news sources is here:


Any and all doubts that Donald Trump is a fascist who was hell bent on overthrowing the United State Government should be laid to rest by the evidence and testimony presented during the 8 days congressional public hearings by Trump’s own appointed staff, Trump former officials and loyalist.

The evidence established that Trump and his associates conspired for weeks, planned and orchestrated an armed mob dominated by white extremists such as the Proud Boys and the Oath Keepers to violently disrupt and stop the peaceful transfer of power and to stop the government function of certifying the election.

There is little doubt that the testimony presented by loyal members of Trump’s own administration revealed a man so desperate to hold onto power that he attempted to interfere with the peaceful transition of power and to overthrow the United States democracy. It could and will happen again if Donald Trump runs for President in 2024, unless of course he is indicted, tried and convicted for the crimes he committed with his failed attempt to overthrow our democracy.

Some say indicting and prosecuting Trump will further divide an already divided country and he will declare that his prosecution is political persecution. Still others say if convicted, Trump will declare that he is a political prisoner and martyr and his conviction would be deemed illegitimate by his supporters. If acquitted, Trump will be emboldened and empowered to proclaim he is the rightful President, even if he loses again.

Simply put, Trump must be prosecuted in that not even a President nor former President is above the law. The failure to prosecute Trump will be more damaging to the nation than turning a blind eye to his effort to subvert democracy and prevent the peaceful transfer of power.

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Pete Dinelli was born and raised in Albuquerque, New Mexico. He is of Italian and Hispanic descent. He is a 1970 graduate of Del Norte High School, a 1974 graduate of Eastern New Mexico University with a Bachelor's Degree in Business Administration and a 1977 graduate of St. Mary's School of Law, San Antonio, Texas. Pete has a 40 year history of community involvement and service as an elected and appointed official and as a practicing attorney in Albuquerque. Pete and his wife Betty Case Dinelli have been married since 1984 and they have two adult sons, Mark, who is an attorney and George, who is an Emergency Medical Technician (EMT). Pete has been a licensed New Mexico attorney since 1978. Pete has over 27 years of municipal and state government service. Pete’s service to Albuquerque has been extensive. He has been an elected Albuquerque City Councilor, serving as Vice President. He has served as a Worker’s Compensation Judge with Statewide jurisdiction. Pete has been a prosecutor for 15 years and has served as a Bernalillo County Chief Deputy District Attorney, as an Assistant Attorney General and Assistant District Attorney and as a Deputy City Attorney. For eight years, Pete was employed with the City of Albuquerque both as a Deputy City Attorney and Chief Public Safety Officer overseeing the city departments of police, fire, 911 emergency call center and the emergency operations center. While with the City of Albuquerque Legal Department, Pete served as Director of the Safe City Strike Force and Interim Director of the 911 Emergency Operations Center. Pete’s community involvement includes being a past President of the Albuquerque Kiwanis Club, past President of the Our Lady of Fatima School Board, and Board of Directors of the Albuquerque Museum Foundation.