The House Select January 6 Committee voted unanimously on Monday to refer former president Donald Trump to the Department of Justice for investigation of four potential crimes. This is the first time in history a former president has been the subject of a criminal referral from Congress. The move was widely expected; the Committee has been hinting at it for at least a year. But although the referrals have an important symbolic effect, they will have no impact on the Department of Justice’s decisions about pursuing criminal charges.
The Criminal Statutes
Congress cited four different crimes in its referral. There were no real surprises among them.
Obstruction of a Congressional Proceeding – 18 U.S.C. § 1512(c)
This statute makes it a crime to corruptly obstruct, influence, or impede any official proceeding, including a Congressional proceeding. The allegation is that through a series of corrupt actions Trump and others sought to obstruct the official Congressional proceeding to certify the election results on January 6, 2021. Those actions included pressuring Mike Pence to reject certain electoral votes for Joe Biden, scheming to send slates of fake electors to Washington to vote for Trump, pressuring state officials to change their election results, and inciting the mob to attack the Capitol.
This obstruction charge is a key felony that DOJ is using to prosecute many of those who participated in the riot at the Capitol. Most recently, Oath Keepers founder Stewart Rhodes and four other Oath Keepers all were convicted of this charge at trial.
Some January 6 defendants have argued this statute does not apply to the January 6 Congressional proceeding. (I analyzed those arguments in this post.) About a dozen federal judges in D.C. have rejected that claim, but one judge agreed and dismissed the charge. Just last week a three-judge panel for the D.C. Circuit Court of Appeals heard arguments in that case. If the appeals court were to reject the charge, that could throw a wrench into any potential prosecution of Trump – not to mention into the cases of all the January 6 defendants already convicted of this crime.
The maximum penalty for obstruction is twenty years in prison.
Conspiracy to Defraud the United States – 18 U.S.C. § 371
The federal conspiracy statute prohibits conspiracies to violate federal statutes and conspiracies to defraud the United States. Usually, a scheme to defraud means a scheme to deprive a victim of money or property. But this statute is interpreted more broadly, to encompass conspiracies to impair, obstruct, or defeat the lawful functions or processes of the federal government by deceitful or dishonest means. The factual allegations here are similar to those in the obstruction charge: that Trump conspired with others to use dishonest means to interfere with the lawful Congressional process to certify the election results.
This type of conspiracy charge is not all that common, but it enjoyed a moment in the spotlight during the investigation by special counsel Robert Mueller. It was the lead charge Mueller used to indict the Russians who conspired to interfere with the 2016 presidential election through social media and other means. They were charged with conspiracy to defraud the United States by impairing the lawful functions of the Federal Election Commission, State Department, and Justice Department.
This charge is a five-year felony.
Conspiracy to Make False Statements – 18 U.S.C. §§ 371 & 1001
This charge is based on the scheme to send fake Trump electors to Washington. False statements, 18 U.S.C. § 1001, is an extremely common federal charge. It penalizes any knowing, material false statement or writing in any matter within the jurisdiction of the federal government. It’s the charge you have no doubt seen referenced on the bottom of federal government forms, warning that any false statement on the form is a criminal offense.
The allegation here is that Trump and others were involved in a scheme to send slates of phony Trump electors to Washington from states that Biden won. As part of that scheme, the electors sent signed certifications containing the names of the phony electors to the National Archives and to Congress. Submitting such false documents to the government is a potential violation of § 1001.
Because the charge is conspiracy to violate § 1001, there is no requirement that Trump himself or other senior Trump officials involved actually signed or submitted a false document. All that is required is that they conspired with others to have the phony electors submit those documents.
Conspiracy under § 371 is a five-year felony.
Rebellion or Insurrection – 18 U.S.C. § 2383
This statute makes it a crime to incite, assist, or engage in a rebellion or insurrection against the United States, or to give aid and comfort to such an insurrection. This allegation is based on Trump summoning the mob to Washington, encouraging them to march on the Capitol, and then doing nothing for three hours as the riot unfolded.
This charge raises some potentially difficult legal issues to the extent it would be based on Trump’s speech to the rioters on January 6. His defense would be that this was protected speech under the First Amendment and cannot be the basis of a criminal charge. I discussed those issues in this post written a few days after the riot. I think the First Amendment defense can probably be overcome, but it is a real issue that DOJ will have to confront when deciding whether to bring this charge.
This is a ten-year felony. In addition, anyone convicted of this crime is disqualified from holding any future federal office.
The Effect of the Referrals
Legally, referrals from Congress are meaningless. The Department of Justice is not required to act on the referral. It doesn’t give DOJ the power to do anything it otherwise can’t do. When it comes to these allegations, DOJ is already actively investigating. A special counsel was recently appointed to probe Trump’s role in the events of January 6.
DOJ is not going to decide whether or not to prosecute based on a referral from Congress. This is as it should be. Members of Congress are politicians, not prosecutors. We don’t want DOJ’s decisions to be influenced by the opinions of politicians from either party. Politics has no role to play in the proper exercise of prosecutorial discretion.
I’ve argued in the past that referrals from the January 6 Committee would actually be counterproductive. They just make it that much easier for Trump and his allies to argue that any later prosecutions are political; that DOJ is simply doing the bidding of House Democrats. They will argue that anyway, of course, but this doesn’t help. Referrals from the Committee were probably inevitable, but as far as DOJ’s mission is concerned I think it would have been better if they had not happened.
That being said, the referrals do make an important symbolic and historical statement. A key part of the Committee’s role is to inform the public and create a record of what happened on January 6, 2021. The Justice Department’s job is to conduct criminal investigations and prosecutions, not to inform the public, and much of DOJ’s work takes place in secrecy.
That’s why the Committee’s final report is so important. And for the Committee to state that it believes the former president committed criminal acts is an important part of the historical record -- whether or not any prosecutions ultimately take place.
The Strength of the Allegations
In the Executive Summary of the report that has already been released, the Committee makes a strong case for these criminal violations. These are the criminal statutes I would have expected them to cite, and I do think the evidence of those violations is substantial.
As the Committee notes, in litigation involving its effort to get emails from Trump attorney John Eastman, a federal judge has already found it more likely than not that Trump engaged in obstruction of Congress and a conspiracy to defraud the United States. Another federal judge, in a case involving some of the January 6 rioters, said there is evidence that Trump’s speech on January 6 amounted to incitement not protected by the First Amendment.
But although the Committee makes a persuasive presentation, no one should assume that criminal charges necessarily will be filed or that the cases would be a slam-dunk. Those federal judges were ruling on disputes about evidence, not making criminal findings. And presenting conclusions from a Committee investigation is a far cry from proving criminal charges beyond a reasonable doubt.
The witnesses at the Committee hearings were largely unchallenged. There were no defense attorneys cross-examining them or presenting a defense case. Some of the evidence could end up looking quite different in a full adversary proceeding.
Let me give just one example. The Committee amassed a good deal of evidence that multiple people told Trump there was no substantial election fraud and that Mike Pence had no power to reject electoral votes. But at trial, the defense would argue that other senior advisors and attorneys were telling Trump the opposite – including a former U.S. Attorney and a law professor. If Trump was getting conflicting advice and chose to believe those who were telling him what he wanted to hear, is that a crime? When it comes to proving criminal intent beyond a reasonable doubt, his ability to point to those conflicting opinions would be a significant defense – one you didn’t hear much about during the Committee hearings.
This is not to say that criminal charges will not be forthcoming. But the Justice Department has to decide whether it could likely prove criminal charges beyond a reasonable doubt to a unanimous jury in an adversary proceeding. That’s a much higher bar to clear than writing a Committee report.
The Committee’s Reluctance to Share Information
Now that its report will be filed and the Committee will disband, presumably all the evidence it has gathered will be made available to the Justice Department. That will undoubtedly be helpful, particularly the deposition transcripts of witnesses who may need to be called in future DOJ proceedings.
It’s unfortunate that much of this information is only being turned over now. DOJ requested such information months ago and the Committee balked at providing it. I can’t think of any good reason why. This is my only major beef with how the Committee did its work. It appears the reluctance to share information was all about turf wars, politics, and the Committee’s concern that it might be “scooped” if information leaked before the Committee could reveal it at its hearings.
I’ve seen some on social media defend the Committee by arguing that DOJ should “do its own work,” but this isn’t a competition. Presumably the Committee and Justice Department share the same goal of seeing that those who committed crimes are held accountable. And DOJ has been a little busy, prosecuting hundreds of individual Capitol rioters in one of the largest and most complex criminal investigations in history. If the Committee were more concerned about justice being pursued and less concerned about making a political splash, it could have been more cooperative in sharing information - and the DOJ investigations might be further along.
What Happens Next
DOJ and special counsel Jack Smith will continue their work. Some evidence from the Committee’s investigation will no doubt be useful, but the criminal referrals will not be a factor in DOJ’s decision whether or not to prosecute. We will have to wait for the grand jury investigations to run their course before we will know the outcome.
The Committee will cease to exist when the current Congress expires at the end of the year. Republicans, who will control the House next year, have promised a probe of the Committee to “investigate the investigators” and will seek to undermine and discredit its work.
The Committee’s voluminous full report, and the record of its hearings, will likely serve as the definitive historical account of the events leading up to and on January 6, 2021. For that, and for the work the Committee did to investigate and create that record, we should be grateful.
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If D.C. Circuit in Blassingame v. Trump holds that Trump, as POTUS at the time, has "absolute immunity" from civil suits arising out of the Insurrection that are premised on his January 6 speech, DOJ won't indict him for violating 18 U.S.C. 2383. Civil immunity (under Nixon v. Fitzgerald's "outer perimeter" rule) would have to include immunity from criminal prosecution.