The Facts Underpinning Jan. 6 Committee Criminal Referrals


After a year and a half and more than 1,000 interviews, the House Select Committee to Investigate the January 6th Attack on the United States Capitol released a 154-page summary of its final report on Dec. 19 that concludes former President Donald Trump was responsible for a “multi-part plan to overturn the 2020 Presidential election.”

“That evidence has led to an overriding and straight-forward conclusion: the central cause of January 6th was one man, former President Donald Trump, who many others followed,” the report states. “None of the events of January 6th would have happened without him.”

The Jan. 6 committee in its final meeting on Dec. 19. Photo by Matt McClain for The Washington Post via Getty Images.

The committee took the unprecedented step of including four criminal referrals to the Department of Justice regarding Trump and others. Those referrals will be passed along to Jack Smith, an independent special counsel appointed by Attorney General Merrick Garland to look into criminal accusations against Trump.

The Department of Justice is under no obligation to consider a criminal prosecution based on the referrals. The New York Times said it “remains unclear just how closely the special counsel’s office in charge of the Justice Department’s own investigation will follow the path mapped out by the committee — or whether Mr. Trump and others will face any criminal charges at all.”

Nonetheless, no former president has ever faced a criminal referral from Congress. Here we will outline the four criminal referrals brought by the committee, and the evidence it cites to back them up.

Obstruction of an Official Proceeding

The first criminal referral from the committee alleges Trump violated Section 1512(c)(2) of Title 18 of the U.S. Code, which relates to someone who “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” In this case, the official proceeding was Congress’ joint session to count electoral votes on Jan. 6, 2021. The penalty for violating the statute is a fine and/or imprisonment of up to 20 years.

The Constitution stipulates that after state electors have certified and sent their sealed votes for president and vice president to the president of the Senate (which is the vice president), he “shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted.” U.S. law says this will occur on Jan. 6.

The committee says Trump sought to “prevent or delay the counting of lawful certified Electoral College votes from multiple States,” by personally and repeatedly pushing then-Vice President Mike Pence to refuse to count electoral votes — even after Pence, his counsel Greg Jacob and others told the president that Pence did not have the authority to do that.

According to the committee report, even Trump’s lawyer John Eastman “admitted” that Trump had been advised that the vice president did not have the unilateral power to refuse to count votes under the Electoral College Act, but Trump “continued to pressure the Vice President to act illegally.”

“[Y]ou know him [Trump] – once he gets something in his head, it is hard to get him to change course,” Eastman wrote in an email to Jacob.

The report cites as evidence Trump’s further efforts to overturn the election, including soliciting state legislatures and state officials to “alter official electoral outcomes.” For example, the report cites notes from Acting Deputy Attorney General Richard Donoghue of a call from Trump on Dec. 27, 2020, in which the president made a request that Donoghue and Acting Attorney General Jeffrey Rosen “just say that the election was was [sic] corrupt + leave the rest to me and the R[epublican] Congressmen” — even after the two Justice officials had just told the president that his various claims about voter fraud “were simply not true,” according to Donoghue.

The report also details Trump’s efforts to install Jeffrey Clark as head of the Department of Justice, because Clark would — in the words of Republican Rep. Scott Perry — “do something about” the allegations of voter fraud. Indeed, Clark had penned a letter on Dec. 28, 2020, to the state Legislature of Georgia claiming — falsely — that the Department of Justice had “identified significant concerns that may have impacted the outcome of the election in multiple States, including the State of Georgia,” and calling on the state Legislature to “convene in special session” to evaluate election fraud. The letter, which was never sent, says there were two sets of electors sent to Washington, one set supporting Biden, the other Trump.

According to the committee report, this was all part of Trump’s plan to use the Department of Justice to overturn the election outcome in Georgia and other swing states won by Biden.

After both Rosen and Donoghue refused to sign the letter, Trump then offered Clark the job of acting attorney general. It was only after Trump was informed that the Justice Department’s leadership — hundreds of people — would resign if that happened that Trump backed off.

“Faced with mass resignations and recognizing that the ‘breakage’ could be too severe, Donald Trump decided to rescind his offer to Clark and drop his plans to use the Justice Department to aid in his efforts to overturn the election outcome,” the report states. “The President looked at Clark and said, ‘I appreciate your willingness to do it. I appreciate you being willing to suffer the abuse. But the reality is, you’re not going to get anything done. These guys are going to quit. Everyone else is going to resign. It’s going to be a disaster,’” according to a committee interview with Donoghue.

Finally, the report alleges that Trump was “responsible for recruiting tens of thousands of his supporters to Washington for January 6th, and knowing they were angry and some were armed, instructing them to march to the Capitol and ‘fight like hell.’”

The report notes that amid the rioting at the Capitol, Trump “refused for multiple hours to take the single step his advisors and supporters were begging him to take to halt the violence: to make a public statement instructing his supporters to disperse and leave the Capitol.”

“Through action and inaction, President Trump corruptly obstructed, delayed and impeded the vote count,” the summary report states.

Conspiracy to Defraud the United States

The committee voted to make a criminal referral against Trump for violating Section 371 of Title 18 of the U.S. Code, which makes it a crime to “conspire either to commit any offense against the United States, or to defraud the United States.” A conviction of this statute carries a penalty of a fine and/or no more than five years in prison.

In laying out the case against Trump and his alleged co-conspirators, the report says the evidence for this crime “overlaps greatly” with the evidence for “obstruction of an official proceeding.”

The report lists three reasons for this criminal referral:

  • Trump “entered into an agreement with individuals to obstruct a lawful function of the government (the certification of the election).”
  • Trump and his co-conspirators “used ‘deceitful or dishonest means’” in their attempts to block the certification of the election. (In prosecuting criminal conspiracy cases, the Department of Justice has said that prosecutors must prove criminal intent, noting that the U.S. Court of Appeals for the 9th Circuit “requires a finding the defendant acted ‘by deceitful and dishonest means.’”)
  • “[T]here were numerous overt acts in furtherance of the agreement, including each of the parts of the President’s effort to overturn the election.”

The report mentions several co-conspirators, but says “Jeffrey Clark stands out as a participant in the conspiracy.” The report cites evidence that suggests “Clark entered into an agreement with President Trump that if appointed 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.” (For more, see our section above on the obstruction referral.)

A few other lawyers were mentioned in the report as co-conspirators, including Kenneth Chesebro, who was described as “a central player in the scheme to submit fake electors to the Congress and the National Archives.” The fake electors were part of an illegal “plot to get the Vice President to unilaterally prevent certification of the election.”

As we write in the section on the obstruction referral, Trump backed down from appointing Clark acting attorney general when faced with mass resignations in the Justice Department. But Trump continued to pressure Pence to reject electoral votes from swing states that Biden narrowly won.

“All Vice President Pence has to do is send it back to the States to recertify, and we become president, and you are the happiest people,” Trump falsely said at the Jan. 6, 2021, rally that preceded the attack on the Capitol.

That same day, Trump urged Pence twice on Twitter to reject enough of Biden’s electoral votes to deny Biden the presidency. “All Mike Pence has to do is send them back to the States, AND WE WIN,” Trump tweeted. “Do it Mike, this is a time for extreme courage!”

Trump pressured Pence to act, even though he was also told by Eastman and others that “the plot to get the Vice President to unilaterally prevent certification of the election was manifestly (and admittedly) illegal,” the report says.

The report argues that the fake elector plan — and other “overt acts” taken to defraud the U.S. — show Trump’s criminal intent.

(In another example of such an overt act, the report says Trump “repeatedly lied about the election, after he had been told by his advisors that there was no evidence of fraud sufficient to change the results of the election.” For more, see our story “Trump Ignored Aides, Repeated False Fraud Claims.”)

In support of its criminal referrals against Trump, the committee report quotes Federal District Court Judge David Carter, who has ruled that some of Eastman’s emails regarding his legal work for Trump were not protected by attorney-client privilege under the “crime-fraud exception” and must be turned over to the Jan. 6 committee.

In a ruling issued on Oct. 19, Carter wrote: “As to the first prong of the crime fraud exception, the Court has previously determined that President Trump was more likely than not engaged in or planning an obstruction of an official proceeding, in violation of 18 U.S.C. § 1512(c)(2), and a conspiracy to defraud the United States, in violation of 18 U.S.C. § 371, when he sought the advice of Dr. Eastman.”

Conspiracy to Make a False Statement

The committee says that Trump violated Section 1001 of Title 18, which concerns making false statements in matters involving the federal government and carries a penalty of a fine and up to five years in prison, along with Section 371, the conspiracy statute for any offense against the government.

This referral is about Trump conspiring with others “to submit slates of fake electors to Congress and the National Archives,” the committee’s summary says.

Section 1001 makes it a crime for anyone who, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully — (1)falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2)makes any materially false, fictitious, or fraudulent statement or representation; or (3)makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”

In seven states, Republican electors signed certifications that falsely said Trump had won those states — these are the false statements at issue here — and, the committee charges, Trump used those slates of fake electors in claiming that Pence could decline to certify the official Biden electors on Jan. 6, 2021.

“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 committee says.

The slates of false electors were created in Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin — all states that Biden won — on Dec. 14, the same day the actual, certified electors in those states officially cast their Electoral College votes for Biden and Vice President Kamala Harris. The National Archives has posted the “unofficial” Republican certificates it received from the false electors on its website.

The committee charges that Trump’s co-conspirators were his attorneys Eastman and Chesebro. The evidence the committee cites includes a memo Eastman wrote that lays out six steps for enabling Pence to declare Trump the winner of the 2020 election on Jan. 6. The memo begins with the statement: “7 states have transmitted dual slates of electors to the President of the Senate,” and the plan Eastman describes relies on those false Republican electors. It says that on Jan. 6, Pence would skip counting electoral votes from states for which he had multiple slates of electors.

“At the end, he [Pence] announces that because of the ongoing disputes in the 7 States, there are no electors that can be deemed validly appointed in those States,” the Eastman memo says, adding that without those seven states, Trump would have more electoral votes than Biden and would be reelected.

Another piece of evidence is that Trump and Eastman asked the Republican National Committee in a teleconference to spearhead the effort to get Trump electors to cast votes in several states, RNC Chairwoman Ronna McDaniel told the committee, according to the report. McDaniel agreed to do that.

The committee quotes several Trump campaign officials criticizing or questioning the plan to create the false slates of electors. For instance, Matthew Morgan, the Trump campaign’s general counsel, told the committee “the [fake] electors were, for lack of a better way of saying it, no good or not — not valid” without a state’s certificate of ascertainment.

The committee cites other “contemporaneous documents” that it says show Trump and allies, including Chesebro, wanted Pence to “rely upon these false slates of electors on January 6th to justify refusing to count genuine electoral votes.”

“The fake electors followed Chesebro’s step-by-step instructions for completing and mailing the fake certificates to multiple officials in the U.S. Government,” the committee says.

Some of the fake electors told the committee “they felt misled or betrayed” and wouldn’t have signed the fake certificates “had they known that the fake votes would be used on January 6th without an intervening court ruling.”

“[T]he evidence indicates that he [Trump] entered into an agreement with Eastman and others to make the false statement (the fake electoral certificates), by deceitful or dishonest means, and at least one member of the conspiracy engaged in at least one overt act in furtherance of the conspiracy (e.g. President Trump and Eastman’s call to Ronna McDaniel),” the committee’s summary says.

‘Incite,’ ‘Assist’ or ‘Aid and Comfort’ an Insurrection

Committee members allege that available evidence shows that Trump violated 18 U.S.C. 2383, which applies when a person “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” A violation is punishable by a fine, imprisonment of up to 10 years, or both — as well as a prohibition from holding public office.

The committee faults Trump for “summoning what became a violent mob” and then “urging them to march to the Capitol.” The committee also says that Trump provoked the crowd with his remarks and tweets on that day.

The committee argues that Trump’s Jan. 6 speech — in which he said “if Mike Pence does the right thing, we win the election” — “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.”

The committee claims Trump further “inflamed and exacerbated the mob violence” when he sent a tweet later that day saying that Pence, who could not legally stop the election certification, “didn’t have the courage to do what should have been done to protect our Country and our Constitution.”

“The President threw gasoline on the fire despite knowing that there was a violent riot underway at the Capitol,” the report says.

The committee also says that it has evidence, including testimony from former White House Counsel Pat Cipollone, that Trump resisted speaking out against the violence or instructing the crowd of Trump supporters to leave the Capitol “despite repeated pleas” from his family, his staff and members of Congress. Trump did not want to secure the Capitol during the attack, the committee claims, saying in a footnote that “evidence suggests that the Vice President and certain members of President Trump’s staff urged [the Department of Defense] to deploy the National Guard notwithstanding the President’s wishes.”

As another example, the committee quotes former White House aide Cassidy Hutchinson, who testified that former White House Chief of Staff Mark Meadows told Cipollone that Trump “doesn’t want to do anything” to stop the violence.

In addition, the committee says that several people charged with participating in the Capitol riot have indicated in their own defense that they were doing what they believed Trump wanted them to do. And the committee notes that Trump said in a Sept. 1 interview that, if he is reelected president, he would consider issuing full pardons and an apology to “many” who participated in the attack that day.

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