United States v. Donald Trump
A "Model Prosecution Memo" on the
Conspiracy to Pressure Vice President Pence
February
22, 2022
Preface
The
following memorandum is a model “prosecution memo” analyzing potential charges
against former President Donald Trump for his efforts to pressure Mike Pence to
abuse his authority as vice president in an attempt to overturn the 2020
presidential election on Jan. 6, 2021. Prosecution memos are prepared by
attorneys in criminal cases at the Department of Justice to summarize the
evidence and their legal theories for prosecution. Prosecution memos enable
supervisors and others in the chain of command to review the evidence, anticipate
defenses, and assess the strengths and weaknesses of a criminal
prosecution. The Report on the Investigation into Russian Interference
in the 2016 Presidential Election[1] prepared
by Special Counsel Robert Mueller, for example, was a kind of prosecution memo,
though it refrained from reaching a conclusion as to whether a crime was
committed and charges should be filed. Prosecution memos generally do so
explicitly.
Report on the
Investigation into the 2020 Presidential Election: Pressuring Vice
President Mike Pence
Public
reporting, including governmental documents, indicate that following the 2020
election, President Donald Trump exerted pressure on Vice President Mike Pence
to reject the certificates of electors from certain states won by Joe Biden and
declare Trump the winner. Under the Twelfth Amendment to the Constitution[2] and
the Electoral Count Act,[3] the
vice president, as president of the Senate, is responsible for opening the
certificates and counting the votes on the sixth day of January following a
presidential election. While facts are still being uncovered, public reporting
and some of the evidence obtained by the Select Committee to Investigate the January
6th Attack on the United States Capitol show a relentless campaign to coerce
Pence into helping Trump retain the presidency. This effort may have been only
one of many schemes within a larger strategy to overturn the election.
Looking
solely at this aspect of the strategy, at least two federal criminal statutes
may have been violated in this episode alone: conspiracy to defraud the United
States and obstruction of an official proceeding. Depending on the facts that
emerge, other statutes may also have been violated, such as the federal voter
fraud statute and seditious conspiracy. Publicly available information also
indicates potential violations of state law. This report focuses solely on
potential violations of federal law.
I. BACKGROUND ON FEDERAL
PROSECUTION
The
Department of Justice follows its internal Principles of Federal Prosecution.
Those principles are intended “to promote the reasoned exercise of
prosecutorial authority and contribute to the fair, evenhanded administration
of the federal criminal laws.”[4]
The Principles include a two-part directive when considering charges, one based
on the sufficiency of the evidence and the other based on the interests of
justice. It is useful to think of them as the legal prong and the discretionary
prong. The legal prong states: “The attorney for the government should commence
or recommend federal prosecution if he/she believes that the person’s conduct
constitutes a federal offense, and that the admissible evidence will probably
be sufficient to obtain and sustain a conviction.”[5]
The discretionary prong states that even if the evidence is legally sufficient,
charges should be declined if one of three conditions is met: “(1) the
prosecution would serve no substantial federal interest; (2) the person is
subject to effective prosecution in another jurisdiction; or (3) there exists
an adequate non-criminal alternative to prosecution.”[6]
Certain factors are impermissible considerations in making a charging decision,
such as political association, activities or beliefs.[7]
II. RELEVANT
STATUTES
The
relevant federal statutes are as follows.
A. Conspiracy to Defraud the United States
Conspiracy
to defraud the United States was a charge used by Special Counsel Mueller in
his indictment against the Internet Research Agency and other Russian entities
and individuals for allegedly interfering in the 2016 election.[8] Title
18, United States Code, Section 371, makes it a criminal offense for two or
more persons to conspire to defraud the United States, a felony punishable by
up to five years in prison.[9] This
offense is sometimes referred to as a Klein conspiracy, after
a case by that name.[10] The
statute forbids an agreement to interfere with or obstruct governmental
functions through fraud or deceit.[11]
As
described below, there is sufficient evidence to support a conspiracy to
defraud the United States by interfering with the functioning of the United
States Congress to certify the results of a presidential election and permit
the transfer of presidential power, as set forth in the Twelfth Amendment to
the United States Constitution and the Electoral Count Act.[12] This
legal process is described in the indictment filed against Stewart Rhodes and
other members of the Oath Keepers organization who have been charged with
seditious conspiracy for their conduct relating to Jan. 6.[13] As
stated in that indictment, the U.S. Constitution and federal statutes codify
the procedures and dates governing the transfer of presidential power in the
United States. The Twelfth Amendment requires presidential electors to meet in
their respective states and certify their state’s votes for president and vice
president. It further requires that the vice president shall open the certificates
in the presence of the Senate and the House of Representatives, “and the votes
shall then be counted.” The Electoral Count Act specifies that the votes shall
be counted in a joint session of Congress at 1 p.m. “on the sixth day of
January succeeding every meeting of the electors,” with the vice president
presiding, to count the electoral votes, resolve any objections, certify their
validity, and announce the result.[14] Here,
the evidence described below supports a charge of conspiracy to defraud the
United States by obstructing and interfering with this process.
B. Obstruction of an Official Proceeding
Title
18, United States Code, Section 1512(c)(2) makes it a crime to corruptly
obstruct, influence or impede an official proceeding or attempt to do so, an
offense that is punishable by up to 20 years in prison.[15] This
theory has been used already to charge scores of defendants for their conduct
in the Jan. 6 attack.[16] Here,
the evidence shows that by pressuring Pence to abuse his authority as vice
president, Trump and his co-conspirators wrongfully attempted to obstruct the
certification of the states’ votes and the transfer of presidential power.
III. FACTUAL SUMMARY
To
date, a great deal of public reporting has described Trump’s alleged efforts to
coerce Pence into abusing his authority to deliver the election to Trump. The
reporting includes sworn witness statements and documents obtained by the Jan.
6 Committee, such as memos written by attorney John Eastman laying out the
plan. Other reporting uses unnamed sources, whom prosecutors would want to
identity and interview, and whose statements they would want to corroborate with
objective evidence, such as memos, logs, phone records, text messages, and
email messages. The summary below is based on public reporting and provides
support for Trump’s potentially illegal conduct and criminal intent.
A. DHS Issues a Statement Refuting Election Fraud
On Nov.
7, 2020, the Associated Press declared Joe Biden the winner of the Nov. 3 U.S.
presidential election.[17] Even
before election day, Trump had alleged voter fraud, and he continues to
maintain that fraud cost him the election.[18] On
Nov. 12, 2020, the Cybersecurity and Infrastructure Security Agency, headed by
Christopher Krebs, issued a joint statement from federal, state, and local
election officials refuting allegations of voter fraud.[19] “The
November 3rd election was the most secure in American history,” the statement
said. “There is no evidence that any voting system deleted or lost votes,
changed votes, or was in any way compromised.” The statement concluded, “While
we know there are many unfounded claims and opportunities for misinformation
about the process of our elections, we can assure you we have the utmost
confidence in the security and integrity of our elections, and you should too.”
Five days later, Trump fired Krebs via Twitter. Trump tweeted that Krebs had
been “terminated,” explaining that “[t]he recent statement by Chris Krebs on
the security of the 2020 Election was highly inaccurate, in that there were
massive improprieties and fraud — including dead people voting, Poll Watchers
not allowed into polling locations, ‘glitches’ in the voting machines which
changed votes from Trump to Biden, late voting, and many more.”[20] To
date, there has been no public reporting of evidence to support Trump’s claims.
B. Nov. 19 Trump Campaign Memo Finds Fraud Allegations False
In an
internal memo dated November 19, 2020, Trump campaign officials concluded that
claims about fraud relating to voting machines was false.[21] The
memo was attached to a motion in a defamation suit brought by a former employee
of the Dominion Voting Systems, which makes the machines at the heart of fraud
claims.[22] Even
as lawyers on behalf of the Trump campaign such as Rudolph Giuliani and Sidney
Powell publicly claimed ties between Dominion and the government of Venezuela
and George Soros, a wealthy contributor to liberal causes, the Trump campaign
had already produced the internal memo debunking these claims.[23] The
memo found no direct ties to Venezuela or Soros, and found no evidence that
Dominion’s leadership had ties to left wing “antifa” activists as Powell had
claimed.[24] The
memo further found that Dominion had parted ways with a company whose software
had caused glitches in the past, and the software was not used in the 2020
election.[25] In
addition, the memo debunked claims Giuliani had made that votes had been
counted in Spain.[26]
C. Attorney General William Barr Announces No Widespread
Voter Fraud; and Privately Briefs Trump and Mark Meadows
On Dec.
1, 2020, Attorney General William Barr publicly announced that the Justice
Department had uncovered no voting fraud “on a scale that could have effected a
different outcome in the election.”[27] Barr
noted that both the Department of Justice and the Department of Homeland
Security had been unable to substantiate any fraud involving voting machines.[28] According
to reporting, Barr met with Trump and Chief of Staff Mark Meadows at the White
House on this same day after his interview.[29] During
the meeting, Trump accused Barr of failing to investigate election fraud
allegations in various states, including Georgia. Barr responded by telling
Trump, “We’ve looked into these things and they’re nonsense.” Barr engaged in a
case-by-case explanation that the claimed fraud in different states was false.
The
same reporting indicates that around Dec. 7 or 8, Barr told Trump that a
conspiracy theory out of Georgia was false.[30] According
to the reporting, Trump had told Barr about a video capturing an incident of
alleged ballot stuffing. The theory was that Georgia election workers had faked
a water main break to drive witnesses out of the State Farm Arena in Fulton
County, where votes were being counted. The election workers then pulled 18,000
ballots our of suitcases and stuffed ballot boxes with votes for Biden. Barr
told Trump this claim was false. According to a Senate Judiciary Committee
report, Barr had asked the FBI and U.S. Attorney’s Office to investigate the
conspiracy theory, and they reported back to him that the allegations were
baseless.[31] The
suitcases were actually standard boxes that are used to transport ballots from
polling places to the central vote tallying location. The water main break had
happened hours earlier.
On Dec.
14, Barr announced that he would resign effective Dec. 23, one month before the
end of the Trump Administration.[32]
D. DOJ Officials Tell Trump There is No Evidence of Fraud
Between
Dec. 13 and Dec. 28, 2020, Trump participated in a series of meetings and calls
with acting Attorney General Jeffrey Rosen and acting Deputy Attorney General
Richard Donoghue. Even though Rosen and Donoghue maintained the position
articulated by Barr, Trump persisted and threatened to replace them. When Rosen
told Trump that DOJ could not “just flip a switch and change the election,”
Trump said, “just say the election was corrupt and leave the rest to me and
Republican Congressmen,” according to Donoghue’s contemporaneous hand-written
notes and the former officials’ congressional testimony.[33] Trump
then suggested putting Jeffrey Clark in charge at DOJ, according to these
witnesses.[34] Rosen
later learned that Clark, an Assistant Attorney General, had met with Trump in
the Oval Office on Dec. 24,[35] in
violation of the DOJ-White House contacts policy that limits communication to
certain high-level individuals to avoid actual or perceived political
interference with case decisions.[36] On
Dec. 28, Clark presented a plan to Rosen and Donoghue that DOJ inform the
legislature of Georgia and five other states that (1) DOJ was investigating
election irregularities and (2) the department was advising state legislatures
to convene to consider appointing an alternate set of electors.[37] Clark
drafted a letter for Georgia as a “proof of concept” that could be used for
each of the states.[38] The
letter noted that the vice president would have the power to decide whether to
count the alternate set of electors at the joint session of Congress on Jan. 6.[39] Rosen
and Donoghue rejected the proposal as being unsupported and “utterly without
precedent.”[40]
E. Director of National Intelligence Finds No Evidence of
Foreign Interference
According
to reporting, on Dec. 28, Clark requested permission from Rosen to attend a
classified briefing from the Director of National Intelligence, John Ratcliffe.[41] Clark
had told other DOJ officials that there was sensitive information that Chinese
intelligence used special kinds of thermometers to change results in voting
machines.[42] Rosen
agreed in hopes that it would put a stop to Clark’s unfounded claims of
election fraud.[43] During
the briefing on Dec. 29, Ratcliffe reportedly provided classified findings that
there was no evidence that foreign interference had affected vote tallies.[44]
F. Rosen Tells Trump He Has No Basis for a Lawsuit in the
Supreme Court
Between
Dec. 29 and 30, 2020, Trump urged DOJ to file a lawsuit with the Supreme Court
against six swing states won by Biden. The suit would urge the Court to toss
out the results of the election in those states based on fraud and direct the
legislatures to select new slates of electors.[45] On
Dec. 30, relying on legal views from the Office of Solicitor General and the
Office of Legal Counsel, Rosen told Trump that DOJ would not file the lawsuit.[46]
In a
separate suit, Rep. Louie Gohmert (R-Tx) brought an action on Dec. 28 to
declare Pence had authority to reject the election results. In a response
submitted by the Justice Department on Dec. 31, Pence opposed the suit.[47] Pence’s
brief said, “A suit to establish that the Vice President has discretion over
the count, filed against the Vice President, is a walking legal contradiction.”
The district court and court of appeals dismissed the suit in the following two
days.
G. Trump Again Threatens to Replace Acting Attorney General with
Clark
On New
Year’s Eve, Dec. 31, 2020, Rosen and Donoghue met with Trump in the Oval
Office.[48] Also
present were Chief of Staff Mark Meadows, White House Counsel Pat Cipollone,
Deputy White House Counsel Patrick Philbin, and DHS General Counsel Chad
Mizelle.[49] During
the meeting, Trump expressed frustration with DOJ, and suggested that he would
fire Rosen and Donoghue and replace them with Clark.[50] Donoghue
responded by saying that DOJ based its decisions on fact and law, and so
replacing leadership would not change the outcome.[51] Later
on Dec. 31, Rosen learned that Clark had met with Trump again, and Trump had
asked Clark whether he would be willing to take over as acting Attorney
General.
H. Georgia Secretary of State Tells Trump There Was No
Significant Fraud in Georgia
On Jan.
2, 2021, Trump, Meadows, and attorney Cleta Mitchell spoke by telephone to
Georgia Secretary of State Brad Raffensperger.[52] Others
on the call included Georgia Deputy Secretary of State Jordan Fuchs and General
Counsel to Georgia’s Secretary of State Ryan Germany.
During
the recorded call, Trump asked Raffensperger to “find 11,780 votes,” one more
than Biden’s margin of victory there, “because we won the state.”[53] During
the one-hour call, Raffensperger repeatedly refused Trump’s request, telling Trump
that his information was wrong.[54]
I. Trump Speaks with 300 State Legislators
Later
on Jan. 2, 2021, Trump and attorneys Rudolph Giuliani and John Eastman
conducted a Zoom conference call with 300 legislators from swing states won by
Biden.[55] According
to Michigan State Sen. Ed McBroom (R), who participated in the call, the Trump
team urged the legislators to overturn the choice of voters in their states,
but provided no evidence of voter fraud.[56] As
McBroom reported: “I was listening to hear whether they had any evidence to
substantiate claims” of significant voter fraud that could change the results
in Michigan.”[57] “(T)he
callers did not provide additional information, he said, and he did not support
a delay in the electoral vote count.”[58]
J. Trump Pushes to Send Clark Letter to Georgia and Other
States; Senior Government Lawyers Threaten to Resign
On
Sunday, Jan. 3, Clark told Rosen that Trump was installing him as acting Attorney
General, prompting Rosen to ask Meadows for a meeting with Trump.[59]
A 6
p.m. Oval Office meeting was scheduled to discuss replacing acting Attorney
General Rosen with Clark.[60] About
an hour before the meeting, Donoghue arranged a conference call of top DOJ
leaders to discuss a mass resignation.[61] The
nine participants agreed to resign together if Trump fired Rosen.[62] A
senior adviser to Rosen and Donoghue, Patrick Hovakimian, then drafted an email
to the heads of all DOJ components, the U.S. Attorneys who chair the Attorney
General’s Advisory Committee, and the staffs of the Offices of the Attorney
General and the Deputy Attorney General.[63] The
email stated:
“Acting
Attorney General Jeff Rosen over the course of the last week repeatedly refused
the President’s direct instructions to utilize the Department of Justice’s law
enforcement powers for improper ends.”[64]
The
email stated that Trump had fired Rosen, and, in response, Donoghue and
Hovakimian were resigning effective immediately.[65] The
email explained that “[p]reserving and defending the institutional integrity of
the Department remains Jeff’s paramount concern.”[66] The
email further suggested that the recipients should consider doing the same:
“The decision of whether and when to resign and whether the ends of justice are
best served by resigning is a highly individual question, informed by personal
and family circumstances.”[67] The
chairs of the AGAC most certainly would have shared the email with all 93 of
the nation’s U.S. Attorneys.
The
Oval Office meeting occurred at 6 p.m. that evening.[68] In
addition to Rosen, Donoghue, and Clark, Steve Engel, another Assistant Attorney
General, attended.[69] Also
present were Cipollone, Philbin, and Eric Herschmann, a senior adviser to
Trump.[70] During
the three-hour meeting, Rosen and Donoghue debunked claims of fraud in Georgia.[71] The
meeting ended after Rosen, other DOJ officials, and Cipollone threatened to
resign if Clark were appointed and if his letters were sent to state
legislatures.[72]
In the
face of mass resignations, Trump backed down from his decision to fire Rosen.[73]
K. Pence Meets with Senate Parliamentarian
On Jan.
3, 2021, Pence met with Senate Parliamentarian Elizabeth MacDonough, along with
his chief of staff, Marc Short, and his counsel, Greg Jacob, regarding his
options during the certification process on Jan. 6.[74] MacDonough
emphasized with Pence that he was merely “a vote counter” at the joint session
of Congress, and he agreed.[75]
L. Pence Meets with Trump and Eastman in the Oval Office
On Jan.
4, 2021, Pence met with Trump in the Oval Office.[76] Also
present were Eastman, Short and Jacob.[77] Eastman
had prepared a two-page memo laying out his plan.[78] (Eastman
also prepared a more detailed six-page memo. [79])
According to the two-page memo, seven states would transmit “dual slates of
electors” to the President of the Senate,” i.e., Pence. For those seven states
that presented dual sets of electors, Pence would declare that “there are no
electors that can be deemed validly elected in those States.”[80] In
fact, Trump electors from seven states actually submitted certificates of
Trump’s electoral victory in their states, even though Biden had won there.[81] According
to an audio recording, the co-chair of the Michigan Republican party said that
the slate of Trump electors from Michigan was submitted at the direction of the
Trump campaign.[82] According
to Eastman’s plan, Pence would discard the electoral votes from those seven
states, tally the votes from the remaining states, and reach a final count of
232 votes for Trump and 222 votes for Biden.[83] Based
on those totals, Pence would then declare Trump the winner.[84] Anticipating
“howls” from Democrats in response to Pence’s actions, Eastman recommended that
Pence would then declare that no candidate had achieved the required 270
electoral votes.[85] The
Twelfth Amendment provides that when no candidate achieves the necessary votes
from electors, the decision is to be made in the House of Representatives, with
the delegation from each state getting one vote. Under the then-existing makeup
of Congress, 26 states had congressional delegations with a majority of
Republican members. If those members voted according to party lines, they could
elect Trump. In the alternative, the two chambers could debate, Republican
members could cause a stalemate, allowing time for state legislatures to act to
support the alternative slate of electors from their respective states.[86] Eastman’s
memo further advised that Pence should take this action without asking
permission. Then, if members of Congress objected they would need to file a
lawsuit to challenge Pence’s actions, resulting in delay and the courts’
potential rejection of judicial review of the complaints as “non-justiciable
political questions.”[87]
According
to one account of the Oval Office meeting, Eastman also urged Pence to “pause
the process in Congress so Republicans in state legislatures could try to hold
special sessions and consider sending another slate of electors.”[88] Eastman
offered a scenario where “VP Pence opens the ballots” and “determines on his
own which is valid.”[89] But
Eastman acknowledged those alternative slates remained goals, not something
that was legally tangible.[90] According
to one source, Eastman argued that Pence should at least try refusing to
certify electors on Jan. 6, because it had never been done before, and so had
not been ruled on by the courts.[91] Eastman
has denied making any such statement.[92] Eastman
said that, in response to a query from Pence, it was an “open question” whether
Pence had the ability to unilaterally decide which electoral votes to count.[93]
That
evening, Pence’s outside counsel, Richard Cullen, called former judge J.
Michael Luttig to ask for his assistance, according to a recent interview with
Luttig.[94] Cullen
informed Luttig of Eastman’s legal claims. Luttig said, “you can tell the vice
president that I said that he has no such authority at all,” to which Cullen
replied, “he knows that.” The next morning the two agreed that Judge Luttig
should issue a public statement to make clear the vice president has no
authority to contest or reject the election results, which Luttig did that
morning.[95]
M. Pence Meets Again with Trump in Oval Office
On Jan.
5, 2021, Pence met with Trump at the Oval Office.[96] Trump
said Pence could and should throw out Biden’s electors.[97] According
to reporting, Trump said, “That is all I want you to do, Mike. Let
the House decide the election. … What do you think, Mike?”[98] Pence
persisted in telling Trump that he did not have the legal authority to do
anything other than count the votes. Trump commented on the crowd that was
gathering outside to show their support for Trump, and asked Pence, “If these
people say you had the power, wouldn’t you want to?” Pence responded that he
“would not want any one person to have that authority.” Trump persisted:
“But wouldn’t it almost be cool to have that power?” “No,” Pence said. “Look,
I’ve read this, and I don’t see a way to do it. We’ve exhausted every option.
I’ve done everything I could and then some to find a way around this. It’s
simply not possible. My interpretation is: No.”[99]
Pence
also mentioned others who provided their opinions that Pence lacked the
authority to change the vote, and added that he agreed with them, stating, “I
personally believe these are the limits to what I can do. So, if you have a
strategy for the 6th, it really shouldn’t involve me because I’m just there to
open the envelopes. You should be talking to the House and Senate. Your team
should be talking to them about what kind of evidence they’re going to
present.”[100] According
to the reporting, Trump responded, “No, no, no! You don’t understand, Mike.
You can do this. I don’t want to be your friend anymore if you
don’t do this.” [101] Pence
replied:
“You’re
not going to be sworn in on the 20th. There is not a scenario in which you can
be sworn in on the 20th. We need to figure out how to deal with it, how we want
to handle it. How we want to talk about it.”[102]
The
reporting states that Trump’s voice grew louder, and he told Pence, “You are
weak. You lack courage. You’ve betrayed us. I made you. You were nothing. Your
career is over if you do this.”[103]
N. Trump’s Lawyer Concedes That Pence Plan Was Unsupportable
Also on
Jan. 5, Eastman met with Short and Jacob at the Eisenhower Executive Office
Building. Eastman argued that Pence should reject the Biden electors, according
to two sources.[104] By
the end of the two-hour meeting, Eastman had conceded that having Pence reject
Biden electors was not a viable plan. Eastman later denied so conceding.[105]
According
to a draft op-ed written by Jacob and obtained by the Jan 6 Committee, the
former general counsel to the vice president said: “[O]ne of the President’s
key outside lawyers agreed with me the day before the events at the Capitol
that not a single member of the Supreme Court would support his position. He
acknowledged that 230 years of historical practice were firmly against it, and
that no reasonable person would create a rule that invested a single individual
with unilateral authority to determine the validity of disputed electoral votes
for President of the United States.”[106]
O. Eastman Pushes Fallback Plan for Pence
In
telephone calls later on Jan. 5, Eastman proposed to Pence advisers that he
take a less drastic option outlined in the memos of “sending it back to the
states” for the unfounded fraud claims to be examined.[107] Eastman
also suggested on several occasions that Pence could intervene because the
courts would invoke “the political question doctrine” and decline to decide the
issue.[108]
As
described by Jacob:
“The
outside lawyers pushed a fallback plan positing that the Vice President could
instead stop the electoral vote count by Congress and refer it out to the
states. That suggestion violated several provisions of the Electoral Count Act,
had no historical analog, and would deprive Congress of its historical and
statutory role in vote counting decisions. Neither the House nor the Senate
would agree, and a lawsuit would be filed within the hour. The lawyers
hypothesized the courts might invoke the ‘political question’ doctrine and
refuse to intervene. But if the courts stayed out of a standoff between the
Vice President and Congress over the fate of the Presidency, then where would
the issue be decided? In the streets? The Vice President notably did not invoke
the political question doctrine when a Congressman sued him on December 28
seeking a declaration that the Vice President has unilateral authority to set
electoral votes aside.”[109]
P. Trump Campaign Issues a False Statement that Pence Has
Agreed to Act
Late on
the evening of Jan. 5, Trump issued a false statement that Pence had agreed to
take action beyond counting votes on Jan. 6.[110] According
to reporting, Trump directed his campaign to issue a statement that he and
Pence were in “total agreement that the Vice President has the power to act.”
In fact, this statement was false, the exact opposite of Pence’s position, and
was issued without consulting with the vice president or his office.[111] Soon
after issuing the statement, Trump called Giuliani and then called Steve Bannon
who was also at the Willard Hotel. Trump said that Pence had not caved. Pence
was “very arrogant,” Trump repeatedly said.[112]
That
same evening, Fox News cable television host Sean Hannity sent a private text
message to Chief of Staff Meadows warning, “Pence pressure. WH counsel will
leave.”[113]
Q. Trump’s Lawsuits Claiming Election Fraud Are
Unsuccessful
Jan. 6,
2021, 62 lawsuits had been filed challenging the presidential election.[114] All
but one of those lawsuits had failed. The lone victory was a modest ruling from
a Pennsylvania judge, holding that provisional voters could cure their ballots
by providing identification only within three days of the election.[115] The
ruling affected few votes and did not change the outcome in Pennsylvania, where
Biden had won by more than 81,000 votes.[116] One
representative example came in Michigan, where Powell filed a lawsuit alleging
that votes for Trump had been changed to votes for Biden, and asking the court
to award all of the state’s electoral votes to Trump. In her order rejecting
the plaintiffs’ claims, the judge wrote that they were nothing more than “an
amalgamation of theories, conjecture and speculation that such alterations were
possible.”[117] The
order further stated, “In fact, this lawsuit seems to be less about achieving
the relief Plaintiffs seek — as much of that relief is beyond the power of this
Court — and more about the impact of their allegations on People’s faith in the
democratic process and their trust in our government.”[118] The
judge later imposed sanctions on Powell and her co-counsel for their “historic
and profound abuse of the judicial process.”[119]
In
addition to the rejection of legal challenges by courts, a New York court
suspended Giuliani’s law license based on “uncontroverted evidence that
(Giuliani) communicated demonstrably false and misleading statements to courts,
lawmakers and the public at large in his capacity as lawyer for former
President Donald J. Trump and the Trump campaign in connection with Trump’s
failed efforts at reelection in 2020. These false statements were made to
improperly bolster Giuliani’s narrative that due to widespread voter fraud,
victory in the 2020 United States presidential election was stolen from his
client.”[120] Although
the order was issued well after Jan. 6, 2021, the court found “uncontroverted
proof” that Giuliani had made fabricated statements about election fraud in
November and December 2020 in courts, before state legislative committees, and
in the media.[121] For
example, the court noted that Giuliani failed to “provide a scintilla of
evidence for any of the varying and wildly inconsistent numbers of dead people
he factually represented in Philadelphia during the 2020 presidential
election.”[122] Although
the findings of Giuliani’s bad faith in fabricating allegations is not
dispositive of Trump’s knowledge of fraud, they demonstrate that the
allegations themselves were not just without merit, they were completely
fabricated.
R. Trump Pressures Pence Over Twitter
On Jan.
6, at 1 a.m., Trump tweeted: “If Vice President @Mike_Pence comes through for
us, we will win the Presidency. Many States want to decertify the mistake they
made in certifying incorrect & even fraudulent numbers in a process NOT
approved by their State Legislatures (which it must be). Mike can send it
back!’”[123]
At 8:17
a.m. on Jan. 6, Trump posted another tweet, this one stating, “All Mike Pence
has to do is send them back to the States, AND WE WIN. Do it Mike, this is a
time for extreme courage!”[124]
S. Trump Speaks with Pence by Phone
On Jan.
6, at about 10 am, Pence spoke by phone with Trump, who was in the Oval Office
with two of his advisers, General Keith Kellogg and Trump’s daughter, Ivanka
Trump.[125] Pence
told Trump that he was heading to the Capitol soon, and that he planned to
perform his job without executing Eastman’s plan. Trump persisted in objecting:
“Mike, this is not right! Mike, you can do this. I’m counting on you to do it.
If you don’t do it, I picked the wrong man four years ago. You’re going to wimp
out.”[126] Trump
also reportedly said words to the effect of, “You don’t have the courage to
make a hard decision.”[127]
Ivanka
Trump turned to Gen. Kellogg and said, “Mike Pence is a good man,” to which he
replied, “Yes he is,” according to Gen. Kellogg’s testimony before the Jan. 6
Select Committee.[128]
T. Trump Speaks at the Ellipse
On Jan.
6, 2021, Trump addressed a crowd of his supporters at approximately 1 p.m. on
the Ellipse outside the White House.[129] During
his remarks, Trump said, “If Mike Pence does the right thing we win the
election.”[130] He
explained, “All Vice President Pence has to do is send it back to the states to
recertify and we become president and you are the happiest people.”[131] Trump
then spoke directly to Pence: “Mike Pence, I hope you’re going to stand up for
the good of our Constitution and for the good of our country. And if you’re
not, I’m going to be very disappointed in you. I will tell you right now. I’m
not hearing good stories.’”[132]
Giuliani,
a former United States Attorney, also spoke at the rally. He declared that it
would be “perfectly appropriate” for the Vice President to “cast [] aside” the
laws governing the counting of electoral votes, and “decide on the validity of
these crooked ballots or he can send it back to the state legislators, give
them five to ten days to finally finish the work.”[133]
Another
speaker at the rally was Eastman. “All we are demanding of Vice President Pence
is this afternoon at one o’clock he let the legislatures of the states look
into this so that we get to the bottom of it and the American people know
whether we have control of the direction of our government or not!” Eastman
told the crowd. [134] “We
no longer live in a self-governing republic if we can’t get the answer to this
question!”[135]
According
to reports, Trump was directly involved in planning the speaker lineup.[136]
U. Pence Issues Public Letter Rejecting Eastman’s Theory
On Jan.
6, at 1:02 p.m., Pence posted to Twitter a letter stating that as Vice
President, he lacked “unilateral authority to decide which electoral votes
should be counted during the Joint Session of Congress.”[137] His
duties, the letter stated, were “merely ministerial,” and were limited to
counting the votes. The letter further stated that he would instead follow the
Electoral Count Act, permitting members of Congress, as “the people’s
representatives,” to resolve any disputes.[138] The
letter had been drafted with the help of two conservative legal experts —
former federal Judge J. Michael Luttig and former Justice Department official
John Yoo.[139] Both
have confirmed that they advised Pence’s staff and outside counsel that there
was no basis for the vice president to intervene in the counting of electoral
votes on Jan. 6. “I advised that there was no factual basis for Mike Pence to
intervene and overturn the results of the election,” said Yoo, who now teaches
law at the University of California at Berkeley. “There are certain limited
situations where I thought the Vice President does have a role, for example in
the event that a state sends two different electoral results. . . . But none of those were
present here.”[140]
Luttig
wrote subsequently that “Professor Eastman was incorrect at every turn of the
analysis,” including his suggestion that the vice president could delay the
electoral vote count.[141]
V. U.S. Capitol Attack Begins
At
about 2 p.m., protestors broke a window at the U.S. Capitol and climbed inside.[142] The
Senate and House of Representatives soon went into recess and members evacuated
the two chambers.[143] At
2:24 p.m., Trump tweeted, “Mike Pence didn’t have the courage to do what should
have been done to protect our Country and our Constitution.”[144] The
Capitol would not be secured again until about 6 p.m.[145]
W. Eastman Persists During and After the Attack
According
to reports, during the attack, Jacob sent an email to Eastman stating, “Thanks
to your bull—-, we are now under siege.” [146] Eastman
replied: “The ‘siege’ is because YOU and your boss did not do what was
necessary to allow this to be aired in a public way so that the American people
can see for themselves what happened.”[147]
That
evening, Eastman told Jacob in another email that Pence should still not
certify the results.[148] That
email from Eastman came after the rioters had been cleared from the Capitol and
Pence had returned to the chair to preside over the proceedings and vowed to
continue.[149]
X. Pence Certifies Election Results
At 3:47
a.m. on Jan. 7, Pence announced that Biden had been certified the winner of the
election.[150] On
Jan. 20, 2021, Joe Biden was sworn in as the 46th President of the United
States. Breaking with the precedent and tradition of every prior election,
Trump did not attend the inauguration to signal the peaceful transfer of power.
Y. Trump Continues to Insist Pence Had Power to Overturn
Election
Even
after Biden was sworn in as President, Trump persisted in his claims. On Jan.
30, 2022, as Congress debated whether to amend the Electoral Count Act to avoid
future mischief, Trump issued a statement that Pence had power to overturn the
election: “[W]hat members of Congress are saying is that Mike Pence did have
power to change the outcome, and now want to take that right away.
Unfortunately, he didn’t exercise that power, he could have overturned the Election![151]
On Feb.
1, 2022, Trump issued another statement that Pence “could have sent the votes
back to various legislators for reassessment after so much fraud and
irregularities were found.”[152]
IV. ANALYSIS
This
evidence is sufficient to obtain and sustain convictions of charges for
conspiracy to defraud the United States and for obstruction of an official
proceeding.
A. Conspiracy to Defraud the United States
Title
18, United States Code, Section 371, makes it a crime for two or more persons
to conspire to defraud the United States.[153] The
statute forbids an agreement to interfere with or obstruct governmental
functions through fraud or deceit.[154] The
elements of the offense are:
(1) the
defendant entered into an agreement,
(2) to obstruct a lawful function of the Government,
(3) by deceitful or dishonest means, and
(4) committed at least one overt act in furtherance of the conspiracy.[155]
A
conspiracy to defraud does not require any monetary loss.[156] As
in all conspiracies, the agreement in a Klein conspiracy may
be expressly stated or implied by the parties’ conduct. The Eastman memos set
out the plan that Trump urged Pence to execute to interfere with and obstruct
this process. Here, there is evidence to support all four elements of a
conspiracy to defraud the United States by interfering with the functioning of
the United States Congress to certify the results of a presidential election
and permit the transfer of presidential power, as set forth in the Twelfth
Amendment to the United States Constitution and the Electoral Count Act.[157]
1.
Trump and Eastman Entered into an Agreement
A
conspiratorial agreement may be implied by the conspirators’ conduct. Here, a
fair and well-founded inference may be drawn that Trump and Eastman entered
into an agreement to defraud the United States by interfering with the election
certification process. Based on their conduct, it appears that Giuliani,
Meadows, and Clark may also have entered into the agreement. Trump and
Eastman’s joint efforts to persuade Pence to use his position as vice president
on Jan. 6 to reject the votes submitted by electors of certain states provide
evidence of an agreement. The Oval Office meetings on Jan. 4 and 5 at which
Trump urged Pence to execute Eastman’s plan, Eastman’s continuous efforts to
persuade Pence to reject the votes of certain states, and Trump’s constant public
statements to exert pressure on Pence to go along with the plan all show a
concerted effort to achieve a common goal by Trump, Eastman, and others.
2. To
Obstruct a Lawful Function of the Government
The
proper functioning of the certification of votes from the states after a
presidential election is set forth in the Twelfth Amendment and the Electoral
Count Act. As Pence’s legal advisers and the Parliamentarian of the Senate
explained, these laws limit the vice president’s role on Jan. 6 to opening the
certificates from the states in the presence of the Senate and the House of
Representatives, “and the votes shall then be counted.” The Electoral Count Act
specifies that session is held with the vice president presiding, to count the
electoral votes, resolve any objections, certify their validity, and announce
the result.[158]
Instead,
Trump, Eastman and others plotted to obstruct and interfere with this process
by pressuring Pence to violate his duty and reject votes from certain swing
states where Biden had won. As an alternative. Eastman pushed Pence to cause
delay to allow state legislatures time to convene and select alternate sets of
electors. The objective of the conspiracy was to overturn the results of the
election and declare Trump the winner. In this way, their agreement obstructed
and interfered with the proper functioning of the United States government.
3. By
Deceitful or Dishonest Means
Conspiracy
to defraud the United States requires that the defendants use dishonest means
or fraud. Here, the requisite intent to defraud can be inferred by the myriad
instances in which authorities told Trump that there was no widespread election
fraud. In November, Krebs announced that the election had been secure. On Nov.
19, Trump’s own campaign had concluded that claims of fraud relating to voting
machines were false. In December, Attorney General Barr said there was no
widespread election fraud. Both men were soon out of their jobs. By December,
Director of National Intelligence John Ratcliffe had concluded that there was
no foreign interference in the election tally. By Jan. 6, more than 60 court
cases had rejected legal claims alleging election fraud. One judge referred to
the claims as “an amalgamation of theories, conjecture and speculation that
such alterations were possible.” The New York court that suspended Giuliani’s
law license said that allegations of election fraud were fabricated and lacked
a “scintilla of evidence.” On multiple occasions, acting Attorney General Rosen
and acting Deputy Attorney General Donoghue told Trump personally that the
department and FBI had found no evidence of fraud. Georgia Secretary of State
Brad Raffensperger told Trump there was no fraud in Georgia. And despite the
complete absence of any evidence to support claims of fraud, Trump rejected all
of these statements to push a false narrative that the election had been
stolen. His intent to defraud can be inferred by the repeated instances in
which he was told by those tasked with investigating election fraud that they
had found none.
4.
Overt Act
Both
Trump and Eastman committed at least one overt act in furtherance of the
conspiracy. An overt act need not itself be an illegal act, just some
affirmative step designed to advance the conspiracy. Meetings with Trump, phone
calls, tweets, and public remarks all constitute overt acts in furtherance of
the conspiracy to defraud the United States in the certification of the
election.
B. Obstruction of an Official Proceeding
Title
18, United States Code, Section 1512(c)(2) makes it a crime to corruptly
obstruct, influence or impede an official proceeding or attempt to do so, an
offense that is punishable by up to 20 years in prison.[159] The
elements of the offense are:
(1) the
defendant obstructed, influenced or impeded, or attempted to obstruct, influence
or impede,
(2) an official proceeding of the United States, and
(3) that the defendant did so corruptly.
1.
Attempt to Obstruct, Influence or Impede
By
pressuring Pence to abuse his power to count the votes of electors on Jan. 6,
Trump was attempting to obstruct, influence or impede the joint session of
Congress to certify the election and permit the transfer of presidential power
to Joe Biden. Even though he was not successful, Trump took substantial steps
in furtherance of his effort. By berating Pence in meetings, by phone, and in
public comments, a factfinder could conclude that Trump attempted to obstruct,
influence or impede the joint session of Congress.
2. Official
Proceeding
The
joint session of Congress that was convened on Jan. 6, 2021, was an official
proceeding for purposes of the statute. 18 U.S.C. Section 1515(a)(1)(B) defines
“official proceeding” to include “a proceeding before Congress.” In several
arising from the Jan. 6 attack, judges of the District Court for the District
of Columbia have found that the joint session of Congress was a formal
proceeding before an official body that satisfies this element of the
obstruction statute.[160]
3. Corruptly
The
statute does not criminalize all efforts to obstruct, influence or impede an
official proceeding, only that those that are done corruptly. For instance,
someone who pulls a fire alarm to evacuate a building in the case of an actual
fire has obstructed the official proceeding, but has not done so “corruptly.”
Corruptly means wrongfully or for an improper purpose.
Here,
attempting to prevent the certification of the votes for president is illegal
only it is wrongful or for an improper purpose. It would be wrongful or
improper for Trump to seek to retain the presidency if he knew that he had been
defeated in the November election. His public statements suggest that he
genuinely believed that he had won the election, but, as discussed above, by
Jan. 6, it was apparent that there was a complete absence of any evidence
whatsoever to support his belief, which at this point had become merely a wish.
The statements from Krebs, Barr, Rosen, Donoghue, Ratcliffe, and Raffensperger,
and the memo from his own campaign team all permit a fair inference that Trump
knew that there was no election fraud, and that his efforts to obstruct the
certification was therefore corrupt.
Independently,
regardless of his knowledge or belief in election fraud, it was an improper
purpose to hold into power after the 50 states had certified their election
results, the Electoral College had voted, and litigation had been exhausted
after an across-the-board rejection by the federal courts.
C. Other Crimes
Other
statutes may also have been violated, such as the federal voter fraud statute.
The federal voter fraud statute makes it a crime if any person “knowingly and
willfully deprives, defrauds or attempts to deprive or defraud the residents of
a State of a fair and impartially conducted election process” by “the
tabulation of ballots that are known by the person to be materially false,
fictitious, or fraudulent under the laws of the State in which the election is
held.”[161] The
crime is punishable by up to five years in prison. If Trump, Eastman, and
others were attempting to defraud the voters of the swing states by rejecting
the duly elected slates of Biden electors, they could be guilty of this
offense, though it is not clear whether their conduct fits the description of
the conduct that is prohibited by the statute.
Another
potential violation would be seditious conspiracy under 18 U.S.C. Section 2384.
This statute makes it a crime for “two or more people” to “conspire to
overthrow put down, or to destroy by force the government of the United States,
or to levy war against them, or to oppose by force the authority thereof, or by
force to prevent, hinder or delay the execution of any law of the United
States.”[162] This
offense has been charged against the Oath Keeper defendants for their roles in
the Jan 6 attack.[163] To
file charges under this statute against Trump, prosecutors would need to obtain
evidence of Trump’s intent to use force to achieve his goal of stopping the
certification for Biden and overturning the results of the election. Trump’s
plan seemed to be focused on pressuring Pence to abuse his authority in
certifying the count rather than the use of force to achieve this end. While
Trump’s vitriolic comments on the Ellipse that day may have been designed to
incite the crowd to attack the Capitol, more evidence that violence was part of
Trump’s plan would be needed to support criminal charges for this offense.
One
other statute, also charged against the Oath Keeper defendants,[164] is
a conspiracy to impede or injure an officer of the United States, in violation
of 18 U.S.C. Section 372.[165] This
statute makes it a crime for two or more persons:
“to
conspire to prevent, by force, intimidation, or threat, any person … from
discharging any duties thereof … or to induce by like means any officer of the
United States to leave the place where his duties are to be performed…”
This
offense is punishable by up to six years in prison.
Here,
the evidence tends to show that Trump agreed with Eastman, Giuliani, and others
to prevent Pence from discharging his duties as vice president to count the
votes and certify the winner of the election at 1 p.m. on Jan. 6, and that they
agreed to do so by intimidation. Trump’s private pressure campaign on Pence as
well as his public remarks over Twitter and at the rally all seem directed at
intimidating Pence into violating his duty. Eastman’s and Giuliani’s remarks
are further evidence of a conspiracy to interfere with the performance of
Pence’s duty through intimidation.
It may
also be the case that Trump, Eastman and Giuliani further intended to incite
the crowd to attack the Capitol and force Pence to flee, which would also
violate the language of the statute making it a crime to induce an officer “to
leave the place where his duty is to be performed,” but it is not necessary to
prove this additional intent to prove a violation of the statute.
V. CONCLUSION
A. The Legal Prong
Based
on the facts already known, it appears that Trump, Eastman, and others could be
charged with conspiracy to defraud the United States and obstruction of an
official proceeding. While potential defenses would need to be assessed, such
as First Amendment protection for political speech, there is evidence
sufficient to make it probable that convictions could be obtained and
sustained. A prosecutor would also need to assess the litigation risk of trying
the former president. Would it be probable that a jury could be selected who
would be unclouded by political distractions or Trump’s stop-the-steal
disinformation campaign? In light of experience in other high-profile cases, it
seems likely that a rigorous voir dire process could be conducted to identify
jurors who could assess the facts fairly and independent from political
considerations.
B. The Discretionary Prong
In this
case, even though the legal prong is met, the discretionary prong is the much
more difficult question. Considerations under this prong include (1) whether
the prosecution would serve a substantial federal interest; (2) whether the
person is subject to effective prosecution in another jurisdiction; and (3)
whether there exists an adequate non-criminal alternative to prosecution.
1. Substantial
Federal Interest
The
first factor to consider is whether prosecution would advance a substantial
federal interest. Here, the answer is yes. The evidence shows that Trump and
others attempted to overturn the results of a free and fair election through
corrupt means. Their conduct has undermined public confidence in our elections.
This effort is antithetical to a democracy that chooses its leader through the
popular election of electors who, in turn, select the president. Substantial
federal interests include deterrence and public safety, among others. Here,
prosecution is merited to deter Trump or other candidates for public office
from attempting to overturn the results of an election ever again. If Trump and
his associates are able to avoid criminal accountability, then future
candidates, or even Trump himself, will be emboldened to attempt similar
crimes. In addition, the safety of our democracy remains vulnerable to future
attacks unless the criminal justice system pronounces this plot for what it was
– a crime against the United States of America.
2. Effective
Prosecution in Another Jurisdiction
The
second consideration under the discretionary prong is whether the person is
subject to effective prosecution in another jurisdiction. Here, the answer is
no. Public reporting indicates that Trump is under investigation in the State
of Georgia for his efforts to “find 11,780 votes.”[166] But
even if Trump were prosecuted in Georgia, the charges necessarily would be
limited to Trump’s conduct defrauding the voters of Georgia, and would not
cover his corrupt conduct toward the other battleground states whose electors
he sought to nullify. A Georgia prosecution would also fail to address the full
extent of Trump’s harm toward the millions of American people, whom Trump
sought to deprive of their duly elected president. Even those who voted for
Trump are harmed when they are deprived of a president who was elected by
legitimate means.
3. Adequate
Non-Criminal Alternative
The
third factor to consider under the discretionary prong is whether there exists
an adequate non-criminal alternative. Here, again the answer is no. Although
Trump has been sued in civil cases for his conduct on January 6, and could face
money damages, these suits do not capture the full extent of his criminal
conduct. Civil suits also cannot result in the vindication of public harms or
the penalty of imprisonment, which would be necessary to hold Trump accountable
for the enormous damage that he has done to our country and to public
confidence in our elections. In addition to being sued in civil cases, Trump
was also impeached for his role in the Jan. 6 insurrection. He was acquitted,
in part because his term had expired by the time the matter went to trial
before the Senate. That fact was cited by many of the Senators who voted to
acquit. There appear to be no alternatives to federal criminal prosecution that
would be adequate to address the grave harm that Trump has caused to American
democracy and public trust in our elections.
VI. CONCLUDING
THOUGHTS
A final
factor would need to be considered that is absent in most cases – whether the
country would be best served by a criminal prosecution. On the one hand, as
discussed above, a substantial federal interest is served by prosecuting a
leader who attempted to overturn an election. On the other hand, criminal
charges against Trump could have a dangerously divisive effect on the country.
Trump’s unrelenting rhetoric about a stolen election no doubt contributed to
the violent response that occurred on Jan. 6. DOJ would need to consider the
backlash that would likely follow the filing of criminal charges against him.
Violent protests and civil unrest should be expected. We might even anticipate
loss of life.
The
other potential negative consequence that would need to be considered would be
an acquittal. If Trump were charged and acquitted at trial, then he and his
violent extremist followers would be emboldened. A sober and clear-eyed
assessment of prosecution must consider that charging Trump criminally could
have profoundly negative consequences for our country.
The
only thing worse would be not charging him.