It's Not Just the Attack on the Capitol
The "Select Committee to Investigate the January 6th Attack on the United States Capitol" has a slight branding issue: it turns out the Committee’s investigation and hearings into the conspiracy to overturn the election are not primarily about the attack on the Capitol.
The first hearing did focus on the January 6 attack, and was dominated by the riveting and horrifying video montage of footage from that day. But the second hearing focused on the many times Trump was told the election fraud claims were bogus – none of which happened on January 6. The third hearing was about the pressure campaign on vice president Mike Pence, most of which took place prior to January 6. The hearing on June 21 focused on Trump’s efforts to pressure state officials to overturn their election results -- all of which happened prior to January 6. The same will be true of other hearings.
This is as it should be. A need to investigate the attack on the Capitol is, of course, what led to the Committee’s creation. But as the Committee’s investigation and hearings have unfolded, it’s become increasingly clear that the assault on the Capitol building was merely the bookend to a much broader conspiracy that unfolded over the weeks between election day and January 6.
In the context of that broader conspiracy, the physical assault on the Capitol, as terrible as it was, was not the most significant event. It was not critical to the conspiracy’s potential success. Even without the assault, the efforts to overturn the election were still potentially criminal and still could have succeeded. And in the long run, the events that took place prior to January 6 are actually more dangerous -- because they are easier to repeat, and harder to detect.
The Language of Conspiracy
The Committee has promised that its hearings will demonstrate a “coordinated, multi-step effort to overturn the 2020 presidential election”. That is the language of conspiracy. And indeed, the most likely criminal charges would be conspiracy to obstruct a Congressional proceeding and conspiracy to defraud the United States.
In civil litigation involving the Committee’s efforts to obtain the emails of former Trump attorney John Eastman, a federal judge in California has already ruled there is evidence that Trump and Eastman likely committed those crimes. The standard in a civil case is far lower, of course, so that ruling alone does not prove a crime was committed. But it’s significant that a federal judge saw the facts that way.
The evidence required to prove these two crimes would be very similar. The central allegation would be that, through a series of actions, the conspirators corruptly sought to prevent or delay the Congressional certification of Joe Biden’s election victory at the joint session of Congress on January 6. Unlike the charge of seditious conspiracy (filed against the white supremacist groups the Proud Boys and Oath Keepers), these charges do not require the government to prove that the conspirators intended to use force to achieve their goals.
Conspiracy to obstruct a Congressional proceeding would be charged under 18 U.S.C. 1512(c)(2) and 1512(k). It’s a twenty-year felony. It requires the government to prove that the defendants conspired to corruptly obstruct, influence, or impede any official proceeding, including a proceeding in Congress. More than 200 of the rioters who actually attacked the Capitol on January 6 have been charged with this crime.
Many of those charged under 1512 have challenged their prosecution on various grounds, including claiming that the joint session of Congress was not an “official proceeding” within the meaning of the statute. About a dozen federal judges in D.C. have rejected that argument, with only one judge agreeing with the defendant and dismissing the charge. That issue is bound for the D.C. Circuit Court of Appeals and perhaps the Supreme Court, but I believe the law is on the government’s side.
A conspiracy to defraud the United States under 18 U.S.C. § 371 requires the government to prove that the defendants conspired to defeat, obstruct, or impede a lawful government function of the United States through corrupt or dishonest means. This was a leading charge in the indictment obtained by special counsel Robert Mueller of the Russian agents who interfered with the 2016 presidential election through social media and other methods. Mueller charged that, through those actions, the defendants conspired to defeat the lawful functions of the State Department, Federal Election Commission, and Justice Department.
One benefit of this charge for prosecutors is that it does not require proof that the defendants' conduct was otherwise criminal. So, for example, if a court got hung up on the “official proceeding” requirement of 18 U.S.C. § 1512 and decided that statute did not apply, conspiracy to defraud the U.S. under § 371 could still be used to prosecute essentially the same conduct.
Both of these potential crimes have another significant thing in common: most of the acts done in furtherance of the alleged conspiracies were carried out prior to January 6, by individuals who did not personally storm the Capitol building.
The Conspiracy to Overturn the Election
Conspiracies often involve the conspirators following different avenues to try to achieve their overall criminal goal. Different co-conspirators may have different tasks and may take part in different aspects of the conspiracy. Some paths pursued by some conspirators may be more fruitful than others. But all of their efforts are directed toward achieving their ultimate, shared criminal objective
House Committee vice-chair Rep. Liz Cheney (R-Wyo), in her opening statement on June 9, said the hearings would show that “Donald Trump oversaw and coordinated a sophisticated seven-part plan to overturn the presidential election and prevent the transfer of presidential power.” The different parts of that scheme will be the subject of different hearings. They are best viewed not in isolation but as part of a single overall plan, as Rep. Cheney said. And most of them did not depend on an assault on the Capitol. There are many ways to obstruct an official proceeding that do not involve a physical attack on the proceeding’s location.
As Rep. Cheney discussed, the different parts of this plan included:
-- Spreading the big lie, by falsely claiming Trump had won the election and that there was widespread voter fraud.
-- Corrupting the Department of Justice, by removing senior officials and replacing them with loyalists who would put the power of the Department behind Trump's false claims of election fraud.
-- Pressuring vice president Pence to refuse to count the lawful elector ballots and either send the issue back to state legislatures or simply reject those ballots and declare Trump the winner.
-- Pressuring state officials to support false claims of election fraud and change their election results to declare Trump the winner, in states that Biden actually won.
-- Sending slates of phony electors for president Trump to Washington, to falsely proclaim that they were the duly constituted electors from their states.
Notably, almost all of these efforts took place prior to January 6 and involved potential co-conspirators who were not on the ground on January 6 and did not take part in the assault on the Capitol.
The Nature of a Conspiracy Charge
Several features of a conspiracy charge make it particularly well-suited for these events. The first is simply that there are multiple individuals involved, pursuing a single criminal goal through multiple different avenues. Conspiracy charges are made to capture such efforts.
In a conspiracy charge, all co-conspirators do not need to be involved in all aspects of the conspiracy. Co-conspirators, as partners in crime, are criminally responsible for each other’s actions. If some were involved in pressuring state officials while others worked on the fake electors scheme or on corrupting the Department of Justice, all conspirators would be responsible as participants in a common enterprise pursued along multiple tracks.
Another key feature of a conspiracy charge is that the conspiracy need not succeed; the wrongful agreement itself is the crime. Hundreds of those involved in storming the Capitol have been charged with crimes that were actually completed – destruction of property, assault on a law enforcement officer, or unlawful entry into restricted areas. But in a conspiracy to prevent the certification of the election through non-violent means, it would make no difference that the certification ultimately was successful.
The proceeding on January 6 was in fact obstructed by the assault; it was delayed for hours as Congress was forced to evacuate the Capitol. But there could be conspiracy charges based on events prior to January 6 that do not include the assault on the Capitol as part of the conspiracy. In such a case, it would not matter that the conspiracy to obstruct the proceeding through other means, such as the phony electors scheme, did not ultimately succeed.
And Then There’s the Wire Fraud
Compelling evidence emerged at the June 13 hearing about an entirely different area of potential criminal charges: what Committee member Zoe Lofgren (D-CA) called the “big rip-off”. Trump and his allies allegedly used the phony claims of election fraud to raise more than $250 million from donors for an “election defense fund” that apparently didn’t exist. Instead, money was diverted to Trump’s Political Action Committee and spent on other political projects and donations, including more than $200,000 that went to the Trump Hotel group.
This is an allegation of textbook wire fraud, 18 U.S.C. § 1343. There is a scheme to defraud: fundraising pitches making false claims of election fraud and promising to use donated funds to fight that supposed fraud, and then diversion of the money to other uses by the defendants. And there is the use of wireless transmissions in furtherance of the fraud: the fundraising emails and any electronic payments that were sent in. If I were writing a wire fraud hypothetical for a final exam, I couldn’t do any better.
Trump and his campaign might try to defend by claiming there was “fine print” at the bottom of the fundraising pitches that indicated the money could be used for other purposes. But if the overall design of those pitches is intended to deceive, slipping some fine print in at the bottom won’t prevent it from being considered a fraud. And the pitches also included knowingly false claims about the election being stolen as the reason for raising money, another indicator of fraud.
These additional potential criminal charges, teased by the Committee at the conclusion of the hearing, have no connection to the actual riot at the Capitol. The email solicitations could form the basis for a wire fraud case even if the assault on the Capitol had never taken place.
Bottom Line: It’s About More Than the Assault
I think it’s useful to place all of the events being covered by these Committee hearings into two distinct categories. There’s the physical assault on the Capitol building on January 6, and there’s all of the non-violent efforts to overturn the election results -- most of which took place prior to January 6. Criminal charges could be based on either.
Any potential defendant could be part of one, without being part of the other. The Proud Boys, Oath Keepers, or other rioters who attacked the Capitol (and who are now being prosecuted for that attack) likely had nothing to do with any of the other non-violent efforts to overturn the election. And someone who participated in the phony electors scheme or pressuring state election officials, for example, may have had nothing to do with the riot and may not have anticipated it at all.
We will have to see how any potential criminal charges ultimately shape up. But I could easily see a case alleging a conspiracy to overturn the election results though the various non-violent means that did not include the actual assault on the Capitol as part of that conspiracy. Charges based on the actual assault could proceed on a separate track, as hundreds of such cases already are. And with some defendants -- including potentially Trump himself -- there may be overlap between the two.
Viewed in this light, the assault on the Capitol is best seen as a tragic side effect of the much larger conspiracy to overturn the election. The attack ended up serving as a useful tool, because it bought the conspirators more time on that day to try to use other means to prevent the certification of Biden’s victory. But it was not essential to the conspiracy, need not have been one of its goals, and need not have been foreseen or planned by the co-conspirators. If the conspirators could have overturned the election peacefully through their various non-violent schemes, they would have done so – and it would still be a crime.
It makes sense for the January 6 Committee to spend much of its time showcasing for the American people the events that took place prior to January 6. The gravest danger to the country actually came not from the riot itself but from the schemes of those who sought to overturn the election through nonviolent means.
Security around the Capitol can be improved. Broken doors and windows can be repaired. Physical injuries can heal. Democracy itself may turn out to be more fragile.
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