Alan Rozenshtein and Jed Handelsman Shugerman of Lawfare are now convinced that Donald Trump can be prosecuted for inciting a riot. Yet, prior to Cassidy Hutchinson’s testimony before the January 6 committee last week, they did not believe that the Justice Department had sufficient evidence to charge the disgraced ex-president with a crime. I find it frustrating when experts think themselves into knots.

Here’s the problem. These gentlemen got caught up with looking a legal statutes and what kind of evidence would satisfy them, which is understandable because that’s how lawyers think and how they’re obligated to operate. No matter what, any prosecution will ultimately come down to proving the elements of the indictments.

But this type of thinking led them to think of January 6 in terms of the riot and violence rather than the illegal effort to remain in power after losing an election. January 6 was a long-planned coup attempt, and the armed struggle with the Capitol police was not necessarily part of the plan. We know, for example, that Trump was under the assumption that he’d be at the head of the mob storming the barricades. There he would face down the police and demand entry, which may have been granted without a fight.

Then he could arrive at the congressional Electoral College certification ceremony backed by tens of thousands of heavily armed citizens and pull the equivalent of Saddam Hussein’s 1979 Ba’ath Party purge on Congress. Trump was apoplectic when the Secret Service refused to allow him to travel to the Capitol, but he let the riot become his backup plan.

Because Rozenschtein and Shugerman were focused on the riot, they put their analytical effort into examining the content of Trump’s pre-riot speech at the Ellipse, and they felt that it was not sufficient to support an incitement charge. This was based solely on the speech and other public knowledge, and not any conjecture about what evidence might not be public or could emerge through investigatory efforts. In that extremely narrow set of parameters, their analysis was sound if not conclusive. If the only crime under consideration was the riot and the only evidence of complicity was the speech, then it would be a hard case to win in court.

Well, new evidence did emerge, which should have been predictable, and it added weight to the case that Trump knew the mob was heavily armed and wanted them to confront the Capitol police.

Our conclusion, which we each came to independently, was largely grounded in First Amendment concerns about criminalizing purely political speech.

But Tuesday’s explosive testimony from Cassidy Hutchinson, a former aide to Trump’s chief of staff, Mark Meadows, changed our minds. In particular, Hutchinson testified to hearing Trump order that the magnetometers (metal detectors) used to keep armed people away from the president be removed: “I don’t fucking care that they have weapons, they’re not here to hurt me. They’re not here to hurt me. Take the fucking mags [magnetometers] away. Let my people in. They can march to the Capitol from here; let the people in and take the mags away.” …

…These utterances by Trump (as alleged by Hutchinson) were not political speech. They serve as additional proof of intent and context, and—crucially—a material act to increase the likelihood of violence. This easily distinguishes Trump’s speech at the rally from other kinds of core political speech that should never be criminalized.

So, now Rozenschtein and Shugerman believe “if presented in a criminal trial, Hutchinson’s testimony would establish that Trump was at the very least willfully blind to the possibility of, and—as seems increasingly plausible—actively in favor of, the crowd causing violence at the Capitol.” In other words, now they think he can be charged with a crime.

But the violence was never the point. The point was that Trump had no intention of relinquishing power, and the mob had been assembled to intimidate Congress in the event that Vice-President Mike Pence didn’t go along with the plan to prevent congressional certification of the vote. This has long been known, if apparently not always well understood. Without question, Trump engaged in a conspiracy to interfere with an official act of Congress. Given what his goal was, he also committed a seditious conspiracy.

There should be a lot more clarity about the fact that Trump attempted a coup. When he woke up on January 6, 2001, his singular goal was to prevent Congress from recognizing Biden and Harris as the winners of the 2020 presidential election. Every action he took that morning and afternoon was in furtherance of that clearly illegal goal. He did not intend to step down as president.

He can argue that despite all the legal, expert and official analysis he was provided that he sincerely believed that he had won the election, but that’s a criminal defense he can try out in court. In no way is it a reason why he cannot be prosecuted. It doesn’t seem like much of a defense to me, but getting an American jury to unanimously convict an ex-president of either party is not an easy task, no matter the strength or weakness of the evidence. Admittedly, the evidence needs to be overwhelming to have a chance of conviction, but the case is already strong. As we’ve seen over the last week, there’s a lot more evidence that than we know about, and we can safely assume that any eventual prosecution will be armed with facts that we have not yet seen.

Cassidy Hutchinson’s testimony wasn’t surprising to me because I’ve long understood what Trump was trying to do. He wan’t trying to get a bunch of police officers hurt or create tens of millions of dollars of property damage. He was trying to stage a coup, and all the evidence will support this because it’s what happened.

The incitement to riot charge is stronger because of Hutchinson’s testimony, but it also made clearer that the riot wasn’t the primary plan. Trump wanted to enter Congress at the head of that mob and stop the certification dead in its tracks. Given that, the riot was a minor and unintended distraction from the main crime.