By Marjorie Cohn / Truthout
For the first time in the history of the United States, a committee of Congress has recommended to the Department of Justice that it prosecute a former U.S. president. The bipartisan Select Committee to Investigate the January 6th Attack on the United States Capitol unanimously referred four federal criminal charges against Donald Trump to the Justice Department.
One of the charges — “Incite,” “Assist” or “Aid and Comfort” an Insurrection — has not been used since the Civil War. It would lay the groundwork to disqualify Trump from running for president. Section 3 of the 14th Amendment prohibits anyone who has committed “insurrection or rebellion” or “given aid or comfort to the enemies of the United States” from holding elected office.
The select committee also urged the Justice Department to charge Trump with Conspiracy to Defraud the United States, Obstruction of an Official Proceeding and Conspiracy to Make a False Statement.
Although the committee has no power to initiate criminal proceedings, its referrals — accompanied by the massive trove of evidence it has developed — will likely carry significant weight with the Justice Department.
In November, Attorney General Merrick Garland appointed Jack Smith as special counsel to conduct the Justice Department’s investigation of Trump’s participation in the January 6 attack and his mishandling of classified documents.
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On December 19, following nine public hearings and more than 1,000 witness interviews, the select committee released a 154-page executive summary of its comprehensive report. In its summary, the committee detailed the evidence it has amassed to support each of the four charges it is referring to the special counsel.
The committee determined that the insurrection was part of a larger scheme to overturn the results of the 2020 presidential election. Its report documents how Trump lied about widespread voter fraud (despite being told repeatedly by associates and courts that his claims were false), oversaw a campaign to create false slates of electors and pressured state officials, the Justice Department and Vice President Mike Pence to overturn the results of the election.
Trump summoned a mob of tens of thousands to Washington, D.C. on January 6, 2021, promising a “wild” time. On January 6, he instructed his followers to march to the Capitol, “fight like hell” and “take back” their country. While his minions perpetrated deadly violence in the Capitol for several hours, Trump watched and did nothing to stop it, despite his constitutional duty to faithfully execute the laws.
Title 18, Section 2383 of the U.S. Code punishes anyone who incites, assists or engages in insurrection against the United States, and anyone who provides aid or comfort to an insurrection.
The select committee’s report lays the blame for the January 6 insurrection squarely at the feet of Donald Trump. “The central cause of Jan. 6th was one man, former President Donald Trump, who many others followed,” the report states. “None of the events of Jan. 6th would have happened without him.”
“President Trump was directly responsible for summoning what became a violent mob to Washington, DC, urging them to march to the Capitol, and then further provoking the already violent and lawless crowd with his 2:24p.m. tweet about the Vice President,” the committee wrote. “Donald Trump knowingly and corruptly repeated election fraud lies, which incited his supporters to violence on January 6.”
The committee cited Trump’s incendiary remarks in his January 6 speech at the White House Ellipse, when he knew some of his listeners were armed. During the insurrection, Trump condemned Pence in a tweet, leading to chants of “Hang Mike Pence!” and causing the crowd to surge. When told his supporters were calling for Pence to be hanged, Trump said Pence deserved it and he didn’t think they were doing anything wrong.
“The Select Committee believes that the entire White House senior staff was in favor of a Presidential statement specifically instructing the violent rioters to leave. But President Trump refused.” Chief of Staff Mark Meadows told White House Counsel Pat Cipollone that Trump “doesn’t want to do anything” to stop the violence, the committee wrote. For 187 minutes, Trump watched the mayhem unfold on television, refusing to tell his supporters to go home.
Hope Hicks, former longtime senior counselor to Trump, told the committee that she “suggested . . . several times” on January 4 and 5 that Trump publicly state that January 6 must remain peaceful, but he refused her advice.
“President Trump was impeached for ‘Incitement of Insurrection,’ and a majority of the Senate voted to convict, with many more suggesting they might have voted to convict had President Trump still been in office at the time,” the committee noted.
Conspiracy to Defraud the United States
Title 18, Section 371 makes it a crime for two or more people to conspire to defraud the United States, that is, to make an agreement to impair, obstruct or defeat the lawful functions of the U.S. government by deceitful or dishonest means.
The select committee quoted an opinion written in March by U.S. District Court Judge David Carter, who ruled there was an agreement between Trump and attorney John Eastman to enact Eastman’s illegal plan for Pence to stop or delay the electoral vote count. Carter wrote, “President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by ‘dishonest’ means under § 371.”
Trump prevailed upon Georgia Secretary of State Brad Raffensperger to “find” him 11,780 votes, which he needed to exceed Joe Biden’s vote tally.
Judge Carter wrote that the “evidence demonstrates that President Trump likely knew the electoral count plan had no factual justification. The plan not only lacked factual basis but also legal justification.”
“Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021,” Carter concluded. “Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history…. It was a coup in search of a legal theory.”
Obstruction of an Official Proceeding
Title 18, Section 1512(c) makes it unlawful for an individual to corruptly obstruct, influence or impede any official proceeding, or attempt to do so.
“Based on the evidence developed, President Trump was attempting to prevent or delay the counting of lawful certified Electoral College votes from multiple States,” the select committee wrote. “President Trump was directly and personally involved in this effort, personally pressuring Vice President Pence relentlessly as the Joint Session on January 6th approached.”
The committee quoted Judge Carter, who wrote, “Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly’ under § 1512(c).”
Judge Carter concluded, “Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”
Title 18, Section 1001 prohibits anyone from knowingly and willfully making materially false statements to the federal government.
Trump and his associates solicited fake electoral slates by lying about widespread voter fraud. “The evidence is clear that President Trump personally participated in a scheme to have the Trump electors meet, cast votes, and send their votes to the Joint Session of Congress in several States that Vice President Biden won, and then his supporters relied on the existence of these fake electors as part of their effort to obstruct the Joint Session,” the select committee wrote, citing Trump’s “agreement with Eastman and others.”
The Committee Report Is a “Roadmap to Justice”
The select committee referred four GOP congress members to the House Ethics Committee for sanction for failure to comply with the committee’s subpoenas. They include Representatives Kevin McCarthy (R-California), Jim Jordan (R-Ohio), Scott Perry (R-Pennsylvania) and Andy Biggs (R-Arizona).
Four additional Trump associates were cited in the report for possible prosecution for their actions in trying to overturn the election. They include Mark Meadows and attorneys Rudy Giuliani, Jeffrey Clark and Kenneth Chesebro.
The committee has gathered a wealth of evidence in support of its decision to refer four criminal charges to the Department of Justice for the prosecution of Trump. Select Committee Chair Bennie Thompson described the report as a “roadmap to justice.”
Ultimately, the decision to indict rests with the special counsel, who can issue search warrants, convene a grand jury and grant immunity to witnesses for their testimony against Trump.
Holding Donald Trump legally accountable for his crimes is critical to preventing another insurrection in the future. He should never be allowed to hold elected office again.