The January 6th Insurrection was a crime

and it's good politics to sell it that way.

On August 10, 1995, Timothy McVeigh was indicted in federal court for the Oklahoma City bombing that killed 168 people.

Two years later, Timothy McVeigh was found guilty after a 28 day trial. The man who led the team prosecuting McVeigh was an Assistant U.S. Attorney named Joe Hartzler. During a pre-trial hearing in the case, the defense won an important evidentiary motion — no forensic handwriting experts. The judge didn’t buy into the subjective expertise of that questionable science.

So the prosecution was hampered, because the paper trail of evidence connecting McVeigh to the planning and execution of the bombing did not have McVeigh signing his own name. It turned out to not be that big a problem for Hartzler.

At a key moment during the trial, Hartzler (using state of legal technology) took individual letters from various documents known to have been written by the perpetrator of the heinous crime and created a signature that matched McVeigh’s signature on his driver’s license and on U.S. Army paperwork. In one deft move, much of the “reasonable doubt” was refuted succinctly.

There were, of course, others ways to connect McVeigh to the documents and the bombing, but the theatrical building of McVeigh’s signature one letter at a time eliminated the need for days of complex testimony and multiple witnesses to prove McVeigh’s involvement in the planning and execution of the bombing.

In interviews after the trial, Hartzler credited the streamlined approached he took to his supervisor on the case, Merrick Garland. Garland told him “Do not bury the crime in the clutter”.

Which brings us to the January 6th Insurrection, the Select Committee’s work, Garland’s press announcement on January 5th, and President Biden’s speech on its one year anniversary.

Idealists on the Left are up in arms over the “seen” failure to indict Trump et al. for their part in what looks more and more like a planned coup. Pragmatists just want to see prosecutions happen sooner rather than later. “Right now”-ism is butting its head against reality.

Realists take a different tact.

First, from a timing perspective, why indict now versus in say July, when more facts, evidence, and testimony might declutter a prosecution? The coming Spring promises cherry blossoms, al fresco dining, and televised congressional hearings in Washington. And the advantage of a slew of indictments in late Summer or in the midst of Fall campaign season is obvious.

Second, it is sounding more and more like Garland wants to indict everyone at once versus piecemeal indictments of lower level conspirators to get cooperating witnesses to go after Trump and his inner circle. The former approach is the classic “prisoner’s dilemma” and will likely lead to pleas versus trials.

Third, the Right, which has been selling narratives of just tourists and a lawful constitutional challenge to the election, is going to attack the prosecution of Trump and others involved with the January 6th Insurrection as partisan and political. The Left, particularly the idealists, are and have been calling January 6th and its planning “an attack on democracy”. While that may be accurate, does the Left want a bunch of Trumpists and authoritarians on the Right making a case that they are victims of politics and partisanship?

Politics is a fight over the political middle. Moving that 5-10% of the electorate leftward or rightward is critical to winning elections. There is, no doubt, a cadre of GOP consultants is working as I write to finds a way to spin January 6th to keep moderates from voting left on the issue.

If the Left keeps trying to sell the Insurrection as an “attack on democracy”, the Right will win that spin.

The best thing the Left can do, and numerous realists already have, is to push the message that federal crimes were committed and that political motives and constitutional arguments justifying their actions have nothing to do with it. January 6th may have had deluded actors believing the “Big Lie”, but giving them a platform to argue they were trying to save democracy not to attack it is pure idiocy.

If an absolute majority sees January 6th as crime, indicting those involved looks a lot like Trump’s tax fraud case in New York. That case centers on Trump’s penchant for inflating the value of his assets to obtain bank loans, but devaluing the same assets at tax time. Trump has attempted to attack New York prosecutors investigating him as political and partisan, but his rants about it (most recently at a rally) have come across like a rich guy trying to cheat on his taxes.

The Democrats have a unique opportunity to declutter January 6th and brand itself as the party of “law and order”. Trading the political messaging from “an attack on democracy” to “trying to overthrow the government” would be a good start.