The Jan. 6 committee just lowered the boom on Trump. Now the ball is in
DOJ’s court.
Columnist|
December 19, 2022 at 3:35 p.m. EST
Donald Trump cannot pass off the House Jan. 6 select committee’s final report as mere partisan opinion. His criminal liability is based on a mound of evidence, as the committee meticulously detailed.
Moreover, the committee’s “roadmap to justice” is not just a restatement of facts already made public by the committee. It is the foundation that the Justice Department could use to prosecute the former president and his underlings to the fullest extent of the law.
The report’s executive summary, which the committee released on Monday, includes four criminal referrals for Trump: insurrection, obstruction of an official proceeding, conspiracy to defraud the United States and conspiracy to make a false statement. Trump lawyer John Eastman is also slated to be referred for obstruction of a congressional proceeding and conspiracy to defraud the United States. The committee leaves open the possibility that others might be referred for participation in such crimes, leaving it to the Justice Department to investigate.
At its core, the
report lays out the evidence for critical facts:
· Trump attempted to stay in power despite the vote of the American people.
· He tried to concoct phony slates of electors to change the electoral vote.
· He tried to pressure former vice president Mike Pence to disregard the electoral count.
·
When that did not work, he summoned the mob to the capital on
Jan. 6, 2021, urged rally attendees (some of whom were armed) to march to the
Capitol and did nothing for 187 minutes to stop the violence that
ensued. In fact, while the insurrection was underway, he sent out a tweet
putting a target on Pence’s back.
Never in the history of the republic has Congress taken such a momentous step of issuing a criminal referral of a former president. Then again, never in our history has a president attempted to prevent the peaceful transfer of power.
While a referral has no legal significance, the roadmap puts great pressure on the Justice Department. If special counsel Jack Smith decides not to indict Trump, he will have to explain why his judgment differs from that of a congressional committee that painstakingly examined the evidence and presented it to the American people.
Let’s take a look at each of the potential charges against Trump:
Insurrection
In some sense, this referral should come as no surprise. The entire country saw Trump unleash the mob to stop Congress from counting the electoral votes. A majority of the House impeached Trump specifically for incitement of insurrection. And 57 senators voted to convict him on that charge.
The statute concerning such a criminal charge is fairly straightforward. Section 2383 of Title 18 of the U.S. Code states: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” The committee argues that Trump “gave aid and comfort" to the Jan. 6 insurrectionists with his actions that day.
As several legal commentators have noted, prosecutors in an insurrection case would not need to prove that Trump agreed to overthrow the government, as would be required for a seditious conspiracy charge. They would only need prove he assisted in opposing the authority of the government.
Moreover, conviction under Section 2383 would bar Trump from holding federal office. In essence, a successful prosecution on these lines would accomplish what Republican senators refused to do in the impeachment trial: prevent Trump from ever regaining the presidency.
Yes, proving that Trump “gave aid or comfort” (as opposed to mere cheerleading) would be difficult. Prosecutors would likely have to overcome a First Amendment defense. But the committee’s job was not to make a final prosecutorial judgment about whether a conviction is possible; it was to confirm that the country collectively witnessed an unprecedented crime. In setting forth a voluminous record and encouraging criminal charges, it puts the onus on Smith to decide whether the totality of evidence would not be enough to persuade a jury to convict Trump of insurrection.
Obstructing a congressional proceeding and conspiracy to defraud the United States
These potential charges are nothing new. Legal scholars as well as federal District Judge David O. Carter (in adjudicating Eastman’s attempts to avoid complying with congressional subpoenas based on client-attorney privilege) have found it more likely than not that Trump committed such crimes. (The committee’s summary devotes substantial space to reviewing Carter’s analysis.)
In fact, multiple Jan. 6 insurrectionists have either pleaded guilty to or been convicted of obstructing a congressional proceeding under Section 1512(c) of Title 18. The executive summary released by the committee explains:
Sufficient evidence exists of one or more potential violations of 18 U.S.C. § 1512(c) for a criminal referral of President Trump based solely on his plan to get Vice President Pence to prevent certification of the election at the Joint Session of Congress. Those facts standing alone are sufficient. But such a charge under that statute can also be based on the plan to create and transmit to the Executive and Legislative branches fraudulent electoral slates, which were ultimately intended to facilitate an unlawful action by Vice President Pence – to refuse to count legitimate, certified electoral votes during Congress’s official January 6th proceeding.
Additionally, evidence
developed about the many other elements of President Trump’s plans to overturn
the election, including soliciting State legislatures, State officials, and
others to alter official electoral outcomes, provides further evidence that
President Trump was attempting through multiple means to corruptly obstruct,
impede or influence the counting of electoral votes on January 6th. This is
also true of President Trump’s personal directive to the Department of Justice
to “just say that the election was was [sic] corrupt + leave the rest to me and
the R[epublican] Congressmen.”
Trump’s plot to create alternative electors warrants a conspiracy to defraud charge for similar reasons. This is based on Section 371 of Title 18, which the Supreme Court has ruled makes it a crime to obstruct lawful governmental functions through "deceit, craft or trickery, [or] by means that are dishonest.”
As the committee’s executive summary points out, “The evidence of this element overlaps greatly with the evidence of the Section 1512(c)(2) violations. ... President Trump engaged in a multi-part plan described in this Report to obstruct a lawful certification of the election.”
Conspiracy to make a false statement
This is based on Section 1001 of Title 18, which applies to anyone who “makes any materially false, fictitious, or fraudulent statement or representation” to Congress or who “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
Trump’s attempt to compile phony alternate electors to submit to Congress could subject him to prosecution for this crime. The committee finds:
The Committee believes that
sufficient evidence exists for a criminal referral of President Trump for
illegally engaging in a conspiracy to violate Section 1001; the evidence
indicates that he entered into an agreement with Eastman and others to make the
false statement (the fake electoral certificates), by deceitful or dishonest
means, and at least one member of the conspiracy engaged in at least one overt
act in furtherance of the conspiracy (e.g. President Trump and Eastman’s call
to Ronna McDaniel).
Other potential avenues for accountability
The Justice Department is by no means limited to these pathways of prosecution. The committee holds out the possibility that the department might pursue other charges such as seditious conspiracy if it uncovers evidence that Trump conspired with the violent armed groups that stormed the Capitol.
The Justice Department might also prosecute him under another statute (Section 372) for conspiring “to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof." As the committee noted, there were “potential efforts to obstruct its investigation, including by certain counsel (some paid by groups connected to the former President) who may have advised clients to provide false or misleading testimony to the Committee.”
The committee also included this stunning revelation: “The Select Committee is aware of multiple efforts by President Trump to contact Select Committee witnesses. The Department of Justice is aware of at least one of those circumstances.”
By leaving certain matters and certain potential defendants to the discretion of the Justice Department, the committee establishes its own credibility and underscores its own limits in accumulating evidence.
Beyond prosecution, the report cites members of Congress who failed to comply with subpoenas issued to them, which the committee will refer to the House Ethics Committee for further action. This includes House Minority Leader Kevin McCarthy (R-Calif.), Jim Jordan (R-Ohio) and Scott Perry (R-Pa.).
Many Americans have
rightly wondered whether Trump would ever be held accountable for his misdeeds.
Today marks a critical, unprecedented and justifiable step toward making that
happen. The ball is now in Jack Smith’s court to uphold the rule of law.
