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Four Crimes: The Jan. 6th Committee Recommends Prosecution for Trump

An overview of the evidence for each of the committee’s criminal referrals.
December 20, 2022
Four Crimes: The Jan. 6th Committee Recommends Prosecution for Trump
A January 6 video of Former US President Donald Trump telling his supporters to go home, is seen on screen during a hearing by the House Select Committee to investigate the January 6th attack on the US Capitol in the Cannon House Office Building in Washington, DC, on July 21, 2022. - The select House committee conducting the investigation of the Capitol riot is holding its eighth and final hearing, providing a detailed examination of former president Donald Trump's actions on January 6th. More than 850 people have been arrested in connection with the 2021 attack on Congress, which came after Trump delivered a fiery speech to his supporters near the White House falsely claiming that the election was "stolen." (Photo by SAUL LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)

During its investigation, the House January 6th Committee unearthed a tremendous amount of new information about what led to the mob attack on the U.S. Capitol. On Monday, in its final meeting, the committee voted to recommend that the Department of Justice charge former President Donald J. Trump with (1) inciting or assisting an insurrection, (2) obstruction of an official proceeding of Congress, (3) conspiracy to defraud the United States, and (4) conspiracy to make a false statement.

Although the complete report will not be released until Wednesday, the “introductory material” published on Monday lays out the rationale and evidence for those charges. Let’s go through them one by one.

1. Obstruction of an Official Proceeding

On its face, this charge is relatively easy to understand. Trump orchestrated several plots to prevent or delay counting Electoral College votes from the 2020 presidential election—including the scheme concocted by his legal adviser John Eastman, which involved convincing Vice President Mike Pence to reject slates of electors during the ceremonial congressional counting of the ballots on January 6th.

To make this charge stick, it must be proven that Trump acted with corrupt “intent.” The committee argues those actions were corrupt because by January 6th, Trump knew he had lost dozens of lawsuits challenging the election results. His campaign, advisers, and the Justice Department told him there had been no fraud sufficient to change the election’s outcome. Trump “knew that no majority of any State legislature had taken or manifested any intention to take any official action that could change a State’s electoral college votes,” according to the report. But he “pushed forward anyway.”

To demonstrate corrupt intent, the committee cites this email exchange that Pence aide Greg Jacob had with Eastman in real time as the violence unfolded on Capitol Hill:

While sheltering in a loading dock with the Vice President during the violent January 6th attack, Greg Jacob asked Dr. Eastman in an email, “Did you advise the President that in your professional judgment the Vice President DOES NOT have the power to decide things unilaterally?” Dr. Eastman’s response stated that the President had “been so advised,” but then indicated that President Trump continued to pressure the Vice President to act illegally: “But you know him—once he gets something in his head, it is hard to get him to change course.”

The committee is recommending that Eastman, too, be charged with obstruction.

While the committee believes that Trump’s demonstrated pressure campaign on Pence to prevent certification of the election would on its own be sufficient for charging Trump, it also points to several other instances of obstruction, such as Trump’s plot to create and transmit fraudulent electoral slates to Congress, which was “intended to facilitate” the “unlawful action” Trump wanted Pence to take.

Further evidence of obstruction can be found in 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,’” the report notes.

And the committee also points to the draft letter written by Trump Department of Justice appointee Jeffrey Clark that was intended to convince the Georgia state legislature to change its slate of electors based on false allegations of fraud.

“The letter was transparently false, improper, and illegal,” the report states. “President Trump had multiple communications with Clark in the days before January 6th, and there is no basis to doubt that President Trump offered Clark the position of Acting Attorney General knowing that Clark would send the letter and others like it.”

Also relevant to this charge, the committee points to all the evidence that while the attack was actually underway Trump refused requests from advisers and supporters “begging him” to make a public statement to quell the violence. Putting all these pieces together, the committee concludes that, “through action and inaction, President Trump corruptly obstructed, delayed and impeded the vote count.”

2. Conspiracy to Defraud the United States

Much of the evidence for this charge overlaps with the obstruction charge. But this is added as Trump did not work alone but with many others to carry out his plans to stop counting Electoral College votes.

The report specifically points to Trump’s schemes with Eastman and Clark. Other figures named as participating in these conspiracies include Rudy Giuliani, Mark Meadows, and Kenneth Chesebro.

For backing, the committee refers to a March 2022 opinion from U.S. District Judge David O. Carter that said he believed it was “more likely than not” that Trump and Eastman planned to obstruct the joint session of Congress. Both Trump and Jeffrey Clark, the committee writes, had

been told repeatedly that the Department of Justice had found no evidence of significant fraud in any of its investigations, but they nonetheless pushed the Department of Justice to send a letter to State officials stating that the Department had found such fraud. And Georgia Secretary of State Brad Raffensperger and others made clear to President Trump that they had no authority to “find” him 11,780 votes, but the President relentlessly insisted that they do exactly that, even to the point of suggesting there could be criminal consequences if they refused.

The committee writes that its investigation has “progressed significantly” in the months since Carter issued his ruling and that the evidence it has found goes far beyond the Eastman plot. For these reasons, “The Committee believes there is sufficient evidence for a criminal referral of the multi-part plan” as a conspiracy to defraud the United States, since “the very purpose of the plan was to prevent the lawful certification of Joe Biden’s election as President.”

3. Conspiracy to Make a False Statement

This charge relates to the plot to submit fake electors to Congress and the National Archives.

“The certifications signed by Trump electors in multiple States were patently false,” the report says. “Vice President Biden won each of those States, and the relevant State authorities had so certified. It can hardly be disputed that the false slates of electors were material, as nothing can be more material to the Joint Session of Congress to certify the election than the question of which candidate won which States.”

The report notes that while some of the signatories may have believed the certificates would only be used if Trump won relevant legal cases challenging the results, that rationale cannot apply to Trump himself: “President Trump (including acting through co-conspirators such as John Eastman and Kenneth Chesebro) relied on the existence of those fake electors as a basis for asserting that the Vice President could reject or delay certification of the Biden electors,” the report explains.

The only “remaining question is who engaged in this conspiracy,” committee investigators write. Who might some of those people be? For one, the report specifically names Republican National Committee Chair Ronna McDaniel:

Anticipating that the Eastman strategy for January 6th would be implemented, President Trump worked with a handful of others to prepare a series of false Trump electoral slates for seven States Biden actually won. President Trump personally conducted a teleconference with Eastman and Republican National Committee Chair Ronna McDaniel “a few days before December 14” and solicited the RNC’s assistance with the scheme. McDaniel agreed to provide that assistance.

In sum:

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).

4. “Incite,” “Assist,” or “Aid and Comfort” an Insurrection 

The committee makes note that Trump can be convicted of insurrection without having been shown to have entered any kind of “agreement” with the rioters. “Instead, the President need only have incited, assisted or aided and comforted those engaged in violence or other lawless activity in an effort to prevent the peaceful transition of the Presidency under our Constitution,” the report states.

In detail, the report documents how Trump summoned the mob to Washington, urged it to march to the Capitol, and then tweeted at 2:24 p.m. that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and Constitution.” The report faults Trump for creating a “desperate and false expectation” about what Pence could legally do that “ended up putting the Vice President and his entourage and many others at the Capitol in physical danger.”

The report also notes that the committee has “evidence from multiple sources” establishing that Trump “knew violence was underway” by the time he tweeted that Pence didn’t have “courage.” When testifying to the committee, former White House Counsel Pat Cipollone declined to disclose his direct communications with Trump, but the report states that the Department of Justice “now appears to have obtained a ruling that Cipollone can testify before a grand jury about these communications.” It continues:

The Committee believes that Cipollone and others can provide direct testimony establishing that President Trump refused repeatedly, for multiple hours, to make a public statement directing his violent and lawless supporters to leave the Capitol. President Trump did not want his supporters (who had effectively halted the vote counting) to disperse. Evidence obtained by the Committee also indicates that President Trump did not want to provide security assistance to the Capitol during that violent period. This appalling behavior by our Commander in Chief occurred despite his affirmative Constitutional duty to act, to ensure that the laws are faithfully executed.

That refusal to act, the committee notes, strongly suggests that Trump intended to assist or to aid and comfort the violent mob seeking to disrupt the peaceful transfer of power.

Provocatively, the report also flags concerns about witness tampering. One witness told the committee she terminated her lawyer who was receiving “payments for the representation from a group allied with President Trump.” That witness said that her lawyer:

  • advised that she “could, in certain circumstances, tell the Committee that she did not recall facts when she actually did recall them”;
  • refused a request from the witness that the lawyer not share her testimony before the committee with other lawyers representing other witnesses, sharing such information over the client’s objection instead;
  • refused a request from the witness to not share information from her testimony with members of the press, which the lawyer did over her objection instead;
  • refused to disclose who was paying them to legally represent the witness, telling her, “we’re not telling people where funding is coming from right now.”

Furthermore, the witness was reportedly offered a job that would make her “financially very comfortable” by entities related to Trump. Those offers were withdrawn or failed to materialize after the substance of her testimony became public.

The committee states that “more details” about this will be available when the full report and transcripts are released, as “multiple persons affiliated with President Trump” contacted the witness in the weeks before her hearing. Further, the committee “is aware of multiple efforts by President Trump” to contact witnesses.

Here, the report provides a further clue—somewhat mysterious, certainly troubling—about what’s ahead by highlighting news reports about the Justice Department’s ongoing investigation into Trump’s seizure of classified documents. The report notes “the conduct of counsel for certain witnesses whose fees are being paid by President Trump’s Save America Political Action Committee.” Lawyers who take such payments arguably “have specific incentives to defend President Trump rather than zealously represent their own clients,” the report says. “The Department of Justice and the Fulton County District Attorney have been provided with certain information related to this topic.”

There is much more in the report’s introduction that is worth dissecting, and the full report out later this week will be positively mountainous. For now, though, one last lingering note of interest from the introduction: The report also raises concerns about other witnesses, including Ivanka Trump, Kayleigh McEnany, and “those who still rely for their income or employment by organizations linked to President Trump, such as the America First Policy Institute.” That organization, which bears a particularly large roster of former Trump White House officials and appointees, clearly deserves closer public scrutiny.

Amanda Carpenter

Amanda Carpenter is an author, a former communications director to Sen. Ted Cruz, and a former speechwriter to Sen. Jim DeMint. She was formerly a Bulwark political columnist.