A "Model Prosecution Memo" on the Conspiracy to Pressure Vice President Pence

 

United States v. Donald Trump

A "Model Prosecution Memo" on the Conspiracy to Pressure Vice President Pence 

 

by Barbara McQuade

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.