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More than two years after Donald Trump orchestrated a massive criminal conspiracy to overturn the results of the 2020 presidential election, including directing an armed and violent mob to attack the U.S. Capitol, Attorney General Merrick Garland’s Department of Justice (DOJ) has still not indicted the former president.
The House of Representatives Select Committee to Investigate the January 6 Attack on the U.S. Capitol (“Select Committee”) presented overwhelming evidence — nearly all from Trump loyalists — that Trump committed at least two federal crimes, as well as criminal offenses in the state of Georgia. Although the Select Committee has no power to bring charges against Trump, it can make a criminal referral. The decision to prosecute, however, rests solely with the DOJ.
During the course of eight public hearings, the committee demonstrated that Trump was the fulcrum of a multipronged conspiracy to fraudulently declare himself the winner of the election. The conspiracy included spreading false information that the election was stolen from him; attempting to weaponize the DOJ to corroborate his false claims; bullying Vice President Mike Pence to refuse to count or delay counting electoral votes that had been certified by the states; pressuring state election officials and legislators to change the results of their elections; ordering Republican legislators to generate fake electoral slates and send them to Congress; summoning a violent mob to Washington, D.C. and directing them to march on the U.S. Capitol; and refusing to take action for more than three hours to stop the violence he had set in motion until federal law enforcement had been summoned by Pence.
The Select Committee has developed evidence that Garland’s office should use in prosecuting Trump for criminal conspiracy to defraud the United States and obstruction of Congress. (The following summary of that evidence is detailed in Just Security’s “Criminal Evidence Tracker.”)
Criminal Conspiracy to Defraud the United States
Under federal statute Title 18 U.S. Code Section 371, it is a criminal offense: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy.”
This crime requires: (1) an agreement between two or more people; (2) with the specific intent to obstruct a lawful government function; (3) using deceitful or dishonest means; and (4) one conspirator must have committed at least one overt act in furtherance of the conspiracy.
Agreement between two or more people.
Trump made agreements with John Eastman, Jeffrey Clark and Mark Meadows to defraud the United States.
Eastman, former dean at Chapman Law School, devised a plan for Pence to illegally reject or delay the electoral vote count. U.S. District Court Judge David O. Carter found that “there was likely an agreement between President Trump and Dr. Eastman to enact the plan articulated” in two memos that Eastman wrote.
Trump and Clark, a former DOJ official with no criminal prosecutorial experience, met to discuss installing Clark as acting attorney general. Clark drafted a letter to battleground states with unsupported claims of election irregularities and recommendations that states appoint new slates of electors. Trump decided against Clark’s appointment following threats of massive resignations at the DOJ.
Meadows, Trump’s chief of staff, introduced Trump to Clark; emailed DOJ officials to investigate bogus fraud claims; encouraged state legislators to adopt Eastman’s plan; sent Pence’s staff a plan for him to reject electoral votes from battleground states; and organized and participated in Trump’s January 2, 2021, call to Georgia Secretary of State Brad Raffensperger asking him to “find” enough votes to overturn the election results.
Specific intent to obstruct a lawful government function.
The electoral vote count is a lawful government function. Eastman and Trump specifically intended to obstruct the count by applying repeated pressure on Pence to adopt Eastman’s scheme, which Eastman admitted, in Trump’s presence, was illegal. Trump and Clark specifically intended to interfere with the DOJ’s lawful function by drafting a letter with unsupported claims of election irregularities. Trump planned well in advance of election day to declare victory regardless of who won.
After a meeting on December 19, 2020, in which plans for the military to seize voting machines were rejected, Trump tweeted, “Big protest in D.C. on January 6th … Be there, will be wild!”
A January 2, 2021, email revealed that the march to the Capitol was premeditated. On January 6, Trump was furious that people with weapons were not being admitted, which would have made his crowd appear smaller. Cassidy Hutchinson, an aide to Meadows, testified that she heard him say something to the effect that “I don’t effing care that they have weapons. They’re not here to hurt me, take the effing mags away, let my people in. They can March to the Capitol from here, let the people in, take the effing mags away.” Mags refer to magnetometers, or metal detectors.
Trump was advised against accompanying the mob to the Capitol because they were “going to get charged with every crime imaginable,” White House Counsel Pat Cipollone told Hutchinson. Cipollone “was also worried that it would look like we were inciting a riot or encouraging a riot to erupt at the Capitol,” Hutchinson added.
Nevertheless, Trump insisted on going to the Capitol. He even tried to grab the steering wheel from a Secret Service agent who was driving him back to the White House and lunged at the agent’s throat.
For more than three hours, Trump did nothing to stop the violent assault on the Capitol he had instigated, in spite of numerous entreaties by his staff, Republican leaders and family members to call off the insurrection. While he watched the rampage unfold on Fox News from the White House dining room, Trump called senators urging them to delay certification of the electoral vote count. It was only after the National Guard and FBI agents were summoned by Pence and congressional leaders that Trump ordered his supporters to go home.
Trump was told that the rioters were chanting, “Hang Mike Pence.” According to Meadows, Trump thought Pence deserved it and didn’t think they were doing anything wrong. The rioters came within 40 feet of Pence as he fled to safety. Members of his security detail sent messages to their families, fearing they would never see them again. But during the riot, Trump tweeted that Pence was a “coward” for not halting the vote count. Committee member Elaine Luria said, “He put a target on his own vice president’s back.”
Deceitful or dishonest means.
Trump and his close allies knew or should have known that he lost the fair and free election. Attorney General Bill Barr, Acting AG Jeffrey Rosen, Acting Deputy Attorney General Richard Donoghue, Raffensperger, and others told him so.
Eastman knew his scheme violated the Electoral Count Act and admitted that the Supreme Court would unanimously reject it. The letter that Clark and Trump wanted the DOJ to send to battleground states contained deceptive, dishonest and unsupported claims. White House counsel told Trump and Clark that the letter was “a murder-suicide pact.” Meadows tried to get seven states to send deceptive and dishonest certificates saying that Trump had won those states.
Although Pence “never budged” in his position that he had no authority to reject electors or send them back to state legislatures, Trump dictated a January 5 statement saying he and Pence were in “total agreement” that Pence had such authority.
On election night, Trump declared that all vote counting should stop because he didn’t want “them to find” more ballots at 4:00 AM even though he had been told it would take a long time to count mail-in ballots.
Overt acts in furtherance of the conspiracy.
Trump and Eastman repeatedly pressured Pence to follow Eastman’s plan. The two conspirators met with Pence twice in the Oval Office. Trump called Pence twice on January 6 and mocked him for “not [being] tough enough” to reject or delay the electoral count. Trump sent several tweets on January 6, one of which said, “All Mike Pence has to do is send them back to the States, AND WE WIN…”
Trump called Georgia Governor Brian Kemp and urged him to convene a special legislative session to appoint alternate electors; called Georgia’s chief elections investigator urging her to find voter fraud; and called Raffensperger demanding that he “find” enough votes for Trump to prevail over Biden.
Trump and Eastman called state legislators to overturn the election. At Trump’s behest, Meadows executed a plan to send alternate slates of electors to Congress, declare false electors in battleground states, and submit fake electoral certificates with Trump as the winner.
Three weeks after the election, Trump called in to a Pennsylvania Senate hearing and stated that the “election has to be turned around.” On December 3, 2020, Eastman and Trump’s lawyer Rudy Giuliani made similar appeals to officials in Georgia, and Eastman asked them to adopt an alternate slate of electors. Trump called the Arizona House Speaker at least twice, asking him to substitute Trump electors for Biden’s.
Between December 23 and January 3, 2021, Rosen testified, Trump “either called me or met with me virtually every day,” badgering him and the DOJ to pursue fraud allegations to support Trump’s efforts to overturn the election. Trump pressured the DOJ to write to state legislatures, appoint a special counsel for election fraud, file a lawsuit in the Supreme Court and make public statements with claims of election fraud.
Trump asked Donoghue to “just say that the election was corrupt and leave the rest to [Trump] and the Republican congressmen.” Since Donoghue had told Trump that the fraud allegations were false, Trump was asking Donoghue to lie publicly.
Meadows asked Rosen to meet with Giuliani and another individual who appeared in a YouTube video discussing a false conspiracy theory. It alleged that an Italian defense contractor uploaded software to a satellite which then switched votes from Trump to Biden.
After his scheme to have the military seize voting machines was rebuffed, Trump tweeted the Big Lie, summoning his supporters to D.C. In response, groups mobilized and organized their members to come to Washington. Many tweets and online posts revealed that Trump’s supporters understood his tweet as a call for violence.
In his speech on the morning of January 6, Trump made several references to Pence, urging him to go along with the plan to stop or delay the vote count. Trump said, “We will see whether Mike Pence enters history as a truly great and courageous leader. All he has to do is refer the illegally submitted electoral votes back to the states that were given false and fraudulent information where they want to recertify.” Later, rioters hung a noose outside the Capitol and repeatedly chanted, “Hang Mike Pence.”
Obstruction of Congress
Title 18 U.S. Code § 1512(c)(2) provides: “Whoever corruptly — … obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
Title 18 U.S. Code § 1512(k) adds: “Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.”
This crime requires: (1) the individual(s) acted corruptly; (2) with the specific intent to obstruct, influence, or impede; (3) an official proceeding; (4) two or more people entered an agreement; and (5) knowingly and intentionally joined the conspiracy with awareness of its unlawful purpose.
Individuals acted corruptly.
Although Trump and his close allies knew or should have known that Trump lost the fair and free election, they pursued Eastman’s admittedly unlawful plan to overturn the election. Trump and Eastman called state legislators to get them to submit false electoral slates. Trump and his attorneys pressured several state legislatures to decertify Biden slates of electors and recertify Trump slates. Meadows, acting on Trump’s behalf, planned to send false slates of electors to Congress. Trump and Eastman bullied Pence to illegally stop or delay the electoral count.
Trump tried to get the DOJ to seize voting machines but Barr refused. Clark, on Trump’s behalf, drafted a letter for DOJ to send to battleground states with false claims of election irregularities and urging that states appoint new slates of electors. Trump asked Donoghue to “just say that the election was corrupt and leave the rest to [Trump] and the Republican congressmen.” Trump called Rosen every day for two weeks urging him to act on his fraud claims and pressuring him to appoint a special counsel on election fraud. Trump threatened to fire and replace DOJ leadership who refused to go along with his scheme to weaponize the DOJ. Trump backed down on his intention to replace Rosen with Clark after being told there would be “hundreds and hundreds” of DOJ leadership resignations if he fired Rosen.
Trump alleged fraud months before the election. In April 2020, he declared that the only way he could lose the election was if there was fraud. All told, the Trump campaign expended millions of dollars on television and media ads that claimed the election results were fraudulent.
Trump and Giuliani declared that the election in Arizona was corrupted by fraud, including voting by dead people and undocumented immigrants. Evidence of voter fraud in Arizona was never presented. Giuliani admitted, “we’ve got lots of theories. We just don’t have the evidence.” Eastman told the Arizona speaker of the House to “just do it and let the courts sort it out.”
Trump publicly claimed that “massive voter fraud” occurred in Georgia even though the vote was counted three times and the counts were “all remarkably close.” Trump and Giuliani asserted that election workers pulled out a “suitcase” with 18,000 fake ballots for Biden and counted them several times. All claims of election fraud in Georgia were investigated and proven false. Trump called Raffensperger and pressured him to “find 11,780 votes” and when he refused, Trump threatened him with criminal prosecution.
On election night, on the advice of an “apparently inebriated” Giuliani, Trump claimed victory before all votes were counted despite opposition from his campaign officials.
Trump had advocated and later ratified the violence by calling on the Proud Boys in a presidential debate to “stand back and stand by” and urging his supporters to “fight like hell” on January 6.
Specific intent to obstruct, influence or impede.
Eastman’s plan was designed to obstruct, influence and impede the electoral vote count. Trump and Eastman repeatedly pressured Pence to execute the plan. Clark drafted a letter with false claims that the DOJ found election irregularities and recommended that states appoint alternative slates of electors. Meadows, on Trump’s behalf, specifically intended to impede and influence the vote count by advancing the scheme to send fake slates of electors to Congress.
White nationalist groups Oath Keepers and Proud Boys coordinated with Trump allies Michael Flynn and Roger Stone to get the mob to travel to D.C. on January 6. Trump pardoned Flynn on November 25 and Stone on December 23.
Many members of the mob said they came to D.C. because “Trump asked us to come” to stop the election from being stolen. Even though he was told that several rioters had weapons, Trump did not want them screened so the crowd would look bigger during his speech on the Ellipse. After he became convinced that Pence would not stop or delay the vote count, Trump added veiled threats against Pence to his speech on the Ellipse, telling the rioters to “fight like hell.” When he was told that the rioters were chatting, “Hang Mike Pence,” Trump replied, “Maybe our supporters have the right idea. [Pence] deserves it.”
For more than three hours, Trump did nothing to stop the violent attack on the Capitol and the effort to hang Pence. By permitting the mob to continue to assault the Capitol, Trump intended that they obstruct the Congressional vote count. When Trump finally told the rioters to go home, he called them “very special” “patriots” whom he claimed to “love.” Once again, Trump was endorsing the attempted insurrection.
A congressional count of electoral votes is an official proceeding.
U.S. District Judge Carter concluded that Trump and Eastman likely agreed to enact Eastman’s illegal plan to overturn the election. Trump and Clark agreed to pursue a strategy to overturn the election. Trump and Meadows agreed to advance Eastman’s plan and pressure Raffensperger to “find” enough votes to change the election results.
Knowingly and intentionally joined the conspiracy.
Trump and his close allies knew or should have known that he lost the free and fair election because Barr, Rosen, Donoghue, Raffensperger, and others told him so.
Eastman admitted his plan was illegal and the Supreme Court would unanimously reject it. Nevertheless, Trump and Eastman bullied Pence to execute the plan. Although he knew the scheme was unlawful, Meadows proceeded to urge battleground states to send fake certificates saying that Trump, not Biden, had won those states.
Several members of the House of Representatives, including Mo Brooks, Matt Gaetz, Louie Gohmert, Andy Biggs, Scott Perry and Marjorie Taylor Green, sought presidential pardons for their roles in trying to overturn the election. Meadows and Giuliani also expressed interest in receiving pardons. Seeking a pardon is tantamount to an admission of guilt.
Criminal Charges Against Trump May Be Imminent in Georgia
In Georgia, Fulton County District Attorney Fani Willis empaneled a special grand jury, subpoenaed high-profile witnesses and indicated that criminal charges against Trump could be forthcoming in the fall. Trump’s January 2 call to Raffensperger demanding that he just “find 11,780 votes,” one more than Biden received in Georgia, will likely play a central role in Willis’s prosecution. The scope of her investigation indicates that she may be considering charges of conspiracy to commit election fraud or racketeering-related offenses.
The Select Committee’s formidable work provides a detailed roadmap for Garland to use to indict Trump for criminal conspiracy to defraud the United States and for obstruction of Congress. Garland has suggested there will be no federal indictment of Trump before the November election.
Committee Vice Chair Liz Cheney stated that Trump “summoned this mob, assembled the mob, and lit the flame.” As the Select Committee hearings revealed, Trump started his conspiracy well before January 6, and in advance of the November election. After Trump lit the flame and his supporters attacked the Capitol, he continued to facilitate the insurrection by refusing to stop the carnage as he watched it unfold on Fox News.
Judge Carter found that Trump and Eastman tried to undermine the election with actions amounting to “a coup in search of a legal theory.” They never found one because their coup was illegal.
Trump must be held to account for both his state and federal crimes with no further delay.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.