The House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol unveiled criminal referrals on Monday targeting former President Trump, recommending that the Department of Justice investigate the ex-president for inciting an insurrection, conspiracy to defraud the United States, conspiracy to make a false statement and obstruction of an official proceeding.
The referrals mark the culmination of the committee’s 18-month probe of the Jan. 6 attack and the role Trump played before, during and after the riot. They are a crescendo in the panel’s central case that Trump was at the center of a conspiracy to keep himself in power.
Investigators on the committee said they decided on criminal referrals against Trump based on sufficient evidence showing that he violated various statutes: inciting, assisting, or aiding and comforting an insurrection; obstructing an official proceeding; conspiracy to defraud the United States; conspiracy to make a false statement.
Trump campaign attorney John Eastman, who crafted two memos for the campaign outlining methods to stop the certification of the election results, was also referred for obstruction of an official proceeding and conspiracy to defraud the United States.
“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. Jamime Raskin (D-Md.), a member of the panel, 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 recommendations themselves, however, are largely symbolic, as the Department of Justice is not required to look into referrals from congressional committees. They also come as the agency is conducting its own investigation into the Capitol riot that was recently put under the purview of an independent special counsel.
But the referrals nonetheless mark a significant escalation in the political fight between the committee and Trump, especially as the former president wages his third bid for the White House.
The Justice Department will now have to decide whether it wants to pursue any prosecution based on the panel’s recommendations. It is unclear how the agency will proceed.
Rep. Bennie Thompson (D-Miss.), the chairman of the committee, said he is confident the Justice Department will charge Trump.
“I’m convinced that now that our committee has released our information, they will take the information that we’ve shared with them and proceed with investigation,” Thompson told CNN in an interview following Monday’s meeting. “I have no doubt that once the investigation proceed and is concluded, if the evidence is as we presented it, I’m convinced the Justice Department will charge former President Trump.”
“No one, including a former president, is above the law,” he added.
In backing up its recommendation for an insurrection charge, the panel said Trump was “directly responsible” for summoning a mob of his supporters to Washington, D.C., on Jan. 6, encouraging them to march to the Capitol, and “further provoking the already violent and lawless crowd” when he posted a tweet just before 2:30 p.m. that afternoon criticizing Pence for not hindering the election certification, according to the executive summary the committee released.
The committee argued the tweet “created a desperate and false expectation in President Trump’s mob that ended up putting the Vice President and his entourage and many others at the Capitol in physical danger.”
“When President Trump tweeted at 2:24 p.m., he knew violence was underway. His tweet exacerbated that violence,” the executive summary adds.
The committee also points to Trump’s inaction during the riot — despite requests from his staff and family to tell his supporters to go home — and his disinclination to send security assistance to the Capitol amid the violence. The executive summary notes that a number of defendants in Capitol riot-related cases identified Trump’s claims of a “stolen election” as central to driving their activities at the Capitol.
“The committee has developed significant evidence that President Trump intended to disrupt the peaceful transition of power under our Constitution. The President has an affirmative and primary constitutional duty to act to take care that the laws be faithfully executed,” Raskin said Monday.
“Nothing can be a greater betrayal of this duty than to assist in insurrection against the Constitutional order,” he added.
For the obstruction of an official proceeding referral, the panel argued Trump was directly involved with trying to prevent or delay the counting of the Electoral College votes from a number of states, including “personally pressuring Vice President Pence relentlessly” ahead of the Jan. 6 joint session of Congress.
In that pursuit, the committee said in its executive summary Trump “acted with a ‘corrupt’ purpose,” noting that he “pushed forward anyway” with his efforts to hinder the proceedings despite knowing that Pence did not have the power to prevent certification, and that he lost court cases because of insufficient evidence of widespread fraud.
The committee also cited Trump’s involvement in plans to transmit fake slates of electors, the pressure campaigns he waged against state officials and the Justice Department, his summoning of supporters to Washington on Jan. 6 and his inaction during the riot.
“The whole purpose and obvious effect of Trump’s scheme were to obstruct, influence and impede this official proceeding — the central moment for the lawful transfer of power in the United States,” Raskin said Monday.
On the conspiracy to defraud the United States referral, the committee argued Trump “entered into an agreement with individuals to obstruct a lawful function of government,” referring to the certification of the presidential election, and that the conspirators utilized “deceitful or dishonest means,” including Trump’s “repeated lied about the election” after being told that there was no evidence of fraud that would change the election results.
The conspiracy to defraud the United States statute applies when two or more people conspire to commit offenses against the U.S. The panel named former U.S. Assistant Attorney General for the Civil Division Jeffrey Clark as “a participant in the conspiracy.”
The committee’s executive summary points to the agreement Clark entered into with Trump that said if Clark was made acting attorney general, “he would send a letter to State officials falsely stating that the Department of Justice believed that State legislatures had a sufficient factual basis to convene to select new electors.” But the substance of that vow, according to the panel, was false because “the Department of Justice had reached the conclusion that there was no factual basis to contend that the election was stolen.”
The report also suggested that pro-Trump lawyer Kenneth Chesebro, Rudy Giuliani and former Trump White House chief of staff Mark Meadows participated in the conspiracy, in addition to Clark. But after the hearing, Raskin said the committee was unable to refer people other than Trump and Eastman for investigation by the DOJ because they did not cooperate fully with the committee.
“We’re referring to Trump and Eastman, but you’ll see that when you read the report, that there are lots of other people named as actors. But we were stymied by virtue of the fact that not everybody would testify, lots of people took the Fifth Amendment,” he told reporters. “So with respect to other particular actors, like Clark or Giuliani, we just can’t say because we don’t have quite enough evidence. And we wanted to proceed in a methodical and careful way to speak to those things were we had unanimous belief that offenses had been committed.”
For the conspiracy to make a false statement referral, the committee said evidence suggests that Trump “conspired with others” to submit fake slates of electors to Congress and the National Archives.
The panel walked through the three pieces of criteria the Justice Department uses to determine whether a false statement or act is criminal, arguing that the fake elector scheme was material, that slates were provided to the Executive and Legislative Branches, and that the statement was made knowingly and willfully because Trump “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.”
Mike Lillis contributed. Updated at 5:14 p.m.
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