Outside the Beltway

Trump Facing Multiple Criminal Charges

The January 6 Committee is expected to make a minimum of three referrals.

James Joyner · Saturday, December 17, 2022 · 13 comments

The Guardian (“Exclusive: January 6 panel considering Trump referral to justice department for obstruction of Congress“):

The House January 6 select committee is considering a criminal referral to the justice department against Donald Trump for obstruction of an official proceeding of Congress and conspiracy to defraud the United States on the recommendation of a special subcommittee, according to sources familiar with the matter.

The recommendations on the former president – made by the subcommittee examining referrals – were based on renewed examinations of the evidence that indicated Trump’s attempts to impede the certification of the 2020 election results amounted to potential crimes.

The select committee could pursue additional criminal referrals for Trump and others, given the subcommittee raised the obstruction of an official proceeding and conspiracy to defraud statutes among a range of options, including insurrection, and discussions about referrals continued on Thursday, said the sources.

The referrals could also largely be symbolic since Congress has no ability to compel prosecutions by the justice department, which has increasingly ramped up its own investigations into Trump’s efforts to overturn the 2020 election and subpoenaed top aides to appear before federal grand juries.

The recommendations presage a moment of high political drama next Monday, when the full panel will vote publicly to adopt its final report and formally decide on making referrals, and increase pressure on the attorney general, Merrick Garland, to seek charges over January 6.

Trump could be referred for obstruction of an official proceeding, the subcommittee is said to have concluded, because he attempted to impede the certification and did so with a “consciousness of wrongdoing” – as the panel has previously interpreted the intent threshold.

The former president was seen to have met the elements of the offense since he relentlessly pressured Mike Pence to refuse to count electoral college votes for Joe Biden, despite knowing he had lost the election and had been told the plan was illegal.

Trump could also be referred for conspiracy to defraud the United States, the subcommittee suggested, arguing the former president violated the statute that prohibits entering into an agreement to obstruct a lawful function of government by dishonest means.

The conspiracy charge was seen to be broadly applicable because Trump’s agreement with key lawyers – and potentially even the rioters – did not need to be overt, while the plan to have Pence reject Biden slates of electors with Trump slates that did not exist was deceitful.

The discussions about referring Trump for obstruction of an official proceeding and conspiracy to defraud appeared to build upon the major win for the panel in May, when a federal judge found that Trump and the lawyer John Eastman likely engaged in felonies in trying to subvert the 2020 election.

In the ruling, US district court judge David Carter in California ruled that Trump and Eastman had concocted a “coup in search of a legal theory” and ordered Eastman to turn over his most sensitive emails to the investigation, citing the crime-fraud exception to attorney-client privilege.

The emails later showed that Eastman had admitted that he knew that having Pence interrupt the January 6 certification was illegal – and yet urged Pence’s counsel Greg Jacob that the then-vice president should move ahead with the plot anyway.

The panel may not adopt all of the options presented by the subcommittee – it also suggested civil referrals to the House ethics committee for GOP congressmen and the disbarment of some Trump lawyers, among a number of options, though a witness tampering referral for Trump is no longer under consideration.

But members on the select committee have resolved to suggest criminal and civil charges to some degree, and any referral letters would be accompanied by supporting evidence not dissimilar to prosecution memorandums that are routinely drawn up by the justice department, one of the sources said.

NYT (“Jan. 6 Panel Plans Vote on Referring Trump for Insurrection and Other Charges“):

The House committee investigating the Jan. 6 attack on the Capitol plans on Monday to vote on issuing criminal referrals against former President Donald J. Trump for insurrection and at least two other charges, according to a person familiar with the matter who was not authorized to discuss it.

It had been widely expected the panel would recommend charges against Mr. Trump for obstructing an official proceeding of Congress and conspiracy to defraud the United States. The panel’s members had already argued in federal court that they believed it was likely that he committed those two felonies. But the addition of an accusation of insurrection was a new development.

[…]

In addition to the former president, the panel is likely to consider referring charges against John Eastman, a conservative lawyer who was an architect of Mr. Trump’s efforts to invalidate his electoral defeat. The committee has argued in court that Mr. Eastman most likely violated two federal laws for his role in the scheme, including obstructing an official act of Congress and defrauding the American public.

The charge of obstructing Congress stems from the bid by Mr. Trump, conceived of by Mr. Eastman and others, to disrupt Congress’s official count of electoral votes to certify the results of the presidential election. The count was brought to an abrupt halt when supporters of Mr. Trump violently stormed the Capitol on Jan. 6, sending lawmakers and the vice president fleeing for their lives.

The fraud charge pertains to the former president’s spreading of the lie that he was the true winner of the 2020 election, even after he was told repeatedly that he had lost and, by some accounts, acknowledged privately that he knew it.

The panel also plans to release a portion of its eight-chapter final report into the effort to block the peaceful transfer of power from Mr. Trump to Joseph R. Biden Jr. The committee’s full report is scheduled for release on Wednesday. Additional attachments and transcripts are expected to be released before the end of the year, according to a committee aide who spoke on the condition of anonymity to discuss the plans in advance.

CNN (“January 6 committee expected to announce referral of multiple criminal charges against Trump to DOJ“):

The House select committee investigating January 6, 2021, is expected to announce it will refer at least three criminal charges against former President Donald Trump to the Justice Department, including insurrection, obstruction of an official proceeding and conspiracy to defraud the federal government, according to a source familiar with the matter.

[…]

Rep. Zoe Lofgren, a member of the committee, told CNN’s Jake Tapper Friday that the panel has “been very careful in crafting these recommendations and tethering them to the facts that we’ve uncovered.”

“We spent a huge amount of time not just on what the code sections are and the bottom line recommendation, but the facts – and I think it’s really important when we discuss whatever it is we are going to do and we’ll have a vote on it, that people understand the facts behind the conclusions we reach,” the California Democrat said on “The Lead.”

I don’t have much to add that I haven’t said about this previously. The Committee’s work far exceeded my initial expectations. While it will inevitably be seen as partisan by Trump supporters, the investigation was diligent and shockingly free of the sort of grandstanding that Congressional hearings almost inevitably devolve into.

My strong suspicion is that Attorney General Garland would love to bring charges but, quite reasonably, felt seriously constrained in doing so as a Biden appointee. Multiple criminal referrals from Congress should free him of that constraint.

Whether the charges can be proven beyond reasonable doubt remains to be seen. But I now expect that they will be forthcoming. Presumably, lower-level officials will be charged first, in order to garner their cooperation.