Jan. 6 committee approves criminal referrals targeting Trump, urging DOJ to prosecute

Washington — The House select committee investigating the Jan. 6 assault on the U.S. Capitol recommended the Justice Department pursue at least four criminal charges against former President Donald Trump related to his alleged efforts to thwart the transfer of presidential power, a historic yet largely symbolic move that marks the first time a former president has been the subject of a criminal referral by Congress.

During its final public meeting Monday, the panel’s seven Democrats and two Republicans voted unanimously to adopt its final report and urge the Justice Department to prosecute Trump for obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and incitement, rebellion or insurrection. Trump’s actions could also constitute violations of two other conspiracy statutes depending on potential evidence developed by the Justice Department, the panel said in a summary of the report. 

“We propose to the committee advancing referrals where the gravity of the specific offense, the severity of its actual harm, and the centrality of the offender to the overall design of the unlawful scheme to overthrow the election, compel us to speak,” Rep. Jamie Raskin said at Monday’s meeting. “Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a free pass.”

The panel’s nine members also voted to issue referrals for several of Trump’s allies, including John Eastman, a conservative lawyer and architect of the legal strategy for then-Vice President Mike Pence to unilaterally throw out state Electoral College votes on Jan. 6, and Jeffrey Clark, a Justice Department official who drafted a letter urging state officials to appoint new slates of electors. 

“Even if it were true that President Trump genuinely believed the election was stolen, this is no defense,” the committee wrote in its executive summary. “No president can ignore the courts and purposely violate the law no matter what supposed ‘justification’ he or she presents.”

The committee’s recommendation that the Justice Department pursue criminal charges against Trump is not binding, and federal prosecutors will ultimately decide whether to take such a step. Attorney General Merrick Garland has appointed a special counsel, Jack Smith, to investigate the alleged efforts to interfere with the transfer of power after the 2020 election. The Justice Department declined to comment.

Trump, who has launched a 2024 presidential bid, has maintained he did nothing wrong on Jan. 6, and has repeatedly called the committee’s investigation a “witch hunt.” The Trump campaign did not immediately respond to a request for comment.

Here are the four areas in which the committee says Trump could face criminal charges:

Obstruction of an official proceeding

For its recommendation of prosecuting Trump for obstruction of an official proceeding, the committee argued he was “directly and personally involved” in the effort to delay the counting of Electoral College votes during the Jan. 6 joint session of Congress, and acted with a “corrupt” purpose. Members cited not only Trump’s attempt to pressure Pence to prevent the certification of state electoral votes, but also the plan to submit fake slates of electors to Congress.

“Through action and inaction, President Trump obstructed, delayed and impeded the vote count,” the committee wrote of the joint session, which was temporarily halted after the mob of the former president’s supporters breached the Capitol building.

The committee also said it believes there is “sufficient evidence” for a criminal referral of Eastman based on his plan for Pence to refuse to count state electoral votes during the Jan. 6 joint session of Congress, which it says he knew was illegal. 

In a call with reporters after Monday’s meeting, Eastman defended his actions, saying he was providing legal advice that was well within the bounds of his duties as an attorney. “I consistently recommended that the vice president merely accede requests from state legislature” to delay certification of the election in order to investigate voter fraud claims, Eastman said.

Charlie Burnham, an attorney for Eastman, said the referral has “no legal significance” and “carries no more weight than anyone else who has an opinion on what the Department of Justice should be focused on.”

Conspiracy to defraud the United States

For the possible violation of the statute involving conspiracy to defraud the United States, the panel again cited what it said was Trump’s multi-part plan to reverse the outcome of the election, as well as Clark’s participation in the effort to keep Trump in office. The committee also highlighted Trump’s repeated claims the 2020 election was rife with widespread fraud, despite having been told by multiple close aides there was no evidence of significant fraud.

The committee repeatedly referenced opinions from U.S. District Judge David O. Carter in a dispute over emails from Eastman that investigators sought to obtain. Carter in March found it “more likely than not” that Trump and Eastman “dishonestly conspired” to obstruct the congressional proceedings on Jan. 6, and said emails from Eastman were in furtherance of a conspiracy to defraud the U.S.

“The Committee believes there is sufficient evidence for a criminal referral of the multi-part plan described in this Report …  as the very purpose of the plan was to prevent the lawful certification of Joe Biden’s election as President,” the executive summary stated.

Clark could not immediately be reached for comment.

Conspiracy to make a false statement

The committee’s recommendation of prosecution for conspiracy to make a false statement centers on  the fake slates of electors submitted by Trump’s supporters to Congress and the National Archives. 

“There should be no question that Section 1001 applies here. The false electoral slates were provided both to the Executive Branch (the National Archives) and the Legislative Branch,” the committee wrote. “The statute applies to ‘any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.’ It is well established that false statements to Congress can constitute violations of Section 1001.”

The panel said that Trump relied on the existence of the fake electors from states where President Biden prevailed as a basis for claiming Pence could reject or delay the certification of Mr. Biden’s electors, and he and Eastman requested the Republican National Committee organize the effort to have Trump’s presidential electors meet and cast their votes, as party Chairwoman Ronna McDaniel told the select committee.

“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,” according to the executive summary.

“Incite,” “assist” or “aid and comfort” an insurrection

The committee argues that Trump’s actions related to the Capitol assault constitute a violation of federal law regarding assisting or aiding and comforting an insurrection. 

In addition to encouraging his supporters to “descend on the Capitol” on Jan. 6 to protest the election results, the panel highlighted his comments at a rally outside the White House urging them to march to the Capitol. Investigators also cited Trump’s tweet the afternoon of Jan. 6 condemning Pence for rebuffing his pressure campaign and claiming he didn’t have the “courage” to discard state electoral votes as evidence he inflamed the crowd.

The committee made the case that as the mob of Trump’s supporters continued to stream into the Capitol, prompting the evacuation of lawmakers from the House and Senate chambers, the former president refused to condemn the violence or urge the crowd to disperse, ignoring pleas from his staff and family members to do so.

“Evidence obtained by the Committee also indicates that President Trump did not want to provide security assistance to the Capitol during that violent period,” the panel said in its executive summary. “This appalling behavior by our Commander in Chief occurred despite his affirmative Constitutional duty to act, to ensure that the laws are faithfully executed.”

The purpose and impact of Trump’s actions, it said, “were to mobilize a large crowd to descend on the Capitol.”

Other conspiracy statutes

The committee said other violations of federal law by Trump may have occurred, though they require proof of a conspiracy.

The first prohibits a conspiracy to “prevent, by force, intimidation or threat,” any office-holder from discharging their duties. Three members of the Oath Keepers were convicted of violating this law, and the committee said White House chief of staff Mark Meadows may have relevant information.

The second statute prohibits conspiracy to “overthrow, put down or to destroy by force the government of the United States … 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.”

Stewart Rhodes, the leader of the Oath Keepers, was convicted of seditious conspiracy last month, and several members of the far-right Proud Boys, including its founder Enrique Tarrio, were also charged with conspiracy to use force to stop the transfer of presidential power on Jan. 6. Their trial started Monday.

Referrals to the House Ethics Committee

In addition to urging the Justice Department to prosecute Trump and his allies, the select committee also referred at least four Republican House members to the House Ethics Committee for failure to comply with subpoenas. Those lawmakers are House Minority Leader Kevin McCarthy and Reps. Jim Jordan of Ohio, Scott Perry of Pennsylvania and Andy Biggs of Arizona.

The panel issued subpoenas to each of the Republicans in May for information related to its probe, but none complied with either voluntary or compulsory requests. 

A spokesman for Jordan called the committee’s move “just another partisan and political stunt.” Representatives for the other three members did not immediately respond to a request for comment after Monday’s meeting.