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Understanding the criminal allegations the Jan. 6 committee is constructing against Trump

President Donald Trump speaks during a Save America Rally on Jan. 6, 2021, near the White House. (Eric Lee/Bloomberg News)

For eight months, the House select committee investigating the Jan. 6, 2021, riot at the U.S. Capitol has been interviewing witnesses and collecting evidence. On Wednesday night, we got the first formal indication of its primary target: establishing that former president Donald Trump committed two federal crimes in his efforts to retain power despite losing the 2020 presidential election.

The case is well understood but intricate, particularly in regard to the need to meet the standards of criminal prosecution. So, below, we’ll walk through the case presented by the committee in the document produced on Wednesday. We’ll also contextualize it with other recent legal activity that hints at more significant culpability for Trump allies and maintains a risk of civil repercussions for the former president.

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The committee’s allegations were outlined in a court filing submitted by the committee as it seeks to compel cooperation from an attorney named John Eastman. Eastman was a central figure in Trump’s final effort to hold power after his election loss, writing the memo that argued Vice President Mike Pence could simply set aside electoral votes submitted by several states that voted for Joe Biden. The committee wants him to provide testimony and documents related to his interactions with Trump, but he has refused to do so.

Part of the argument against cooperating is that he was acting as Trump’s attorney and is therefore subject to attorney-client privilege. But that privilege doesn’t apply if the discussions between an attorney and a client were related to commission of a crime — what’s known as the crime-fraud exception. And so the committee delineated the crimes it believes Trump committed in concert with Eastman, hoping to persuade the court to review material that can then be shared with investigators.

The Jan. 6 committee’s allegations

It’s useful to begin by clarifying that the committee’s delineation of suspected crimes is something well short of proof of guilt. It’s not even an indictment, just an articulation of what laws it thinks Trump might have broken. This may be the closest Trump comes to being charged criminally for his post-election efforts. Time will tell.

The two primary crimes it suspects Trump committed are:

  • Obstruction of an official proceeding: that Trump “attempted to obstruct, influence or impede … an official proceeding of the United States, and … did so corruptly.”
  • Conspiracy to defraud the United States: that he “interfere[d] with or obstruct[ed] one of [the government’s] lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.”

Both of those allegations center on the congressional counting of electoral votes that was underway at the Capitol on Jan. 6. That count was an “official proceeding” and “lawful government function” that Trump attempted to obstruct. There’s no real question that Trump made such an attempt, though it’s worth walking through how the court filing documents that effort — and other, less-dramatic attempts to interfere with the government’s procedures.

Perhaps more important is the qualifying aspect of each charge: Did Trump obstruct an official proceeding “corruptly”? Was his interference with the lawful functions “deceitful or dishonest”? For a prosecutor, this would be the heart of the case, showing that Trump knew that his efforts to steal a second term in office were rooted in falsehood.

The case for attempted obstruction

Let’s work backward.

As the riot was underway at the Capitol, Trump made no effort for hours to intervene, despite the rioters obviously acting on his behalf. It’s not included in this week’s filing, but the committee has numerous messages sent to Trump’s team as the riot was going on that called for the president to intervene, understanding that people believing themselves to be effecting Trump’s will would probably be responsive if he asked them to stop. He didn’t. In fact, the filing claims, Trump was aware of the violence underway at the Capitol when he tweeted an excoriation of Pence, who was still in the building.

Before the riot began, Trump had given a speech at the Ellipse in which he encouraged the thousands of people who he had asked to come to Washington to continue to fight. There had apparently been some debate about sending the Ellipse crowd to the Capitol, something for which the organizers had no permit. But Trump called for people to march to the Capitol anyway: “You have to show strength, and you have to be strong,” he said. “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated.” This, of course, depends heavily on the idea that some electors weren’t legal, which was not the case. We’ll come back to this.

Before he spoke, Trump had learned that Pence would not be enacting Eastman’s plan to reject those “unlawful” electors. There had been enormous pressure on Pence to do so for days as Trump’s options for retaining power dwindled. A memo from Eastman outlining the process was circulating by early January. It advocated having Pence set aside electors “without asking for permission.” In the memo, Eastman predicts that Democrats would “howl” futilely in response.

Pence did ask permission, including from the Senate parliamentarian, and didn’t receive it. On Jan. 4, Pence told Trump that he had been advised that he couldn’t simply reject electors — but Trump and Eastman, as articulated in the filing, continued to insist that he could. Eastman also spoke from the Ellipse; he and Trump both insisted that Pence could do something Eastman later “admitted that not a single Justice of the Supreme Court” would validate, according to the filing.

That apparently comes from testimony provided by Gregory Jacob, Pence’s attorney. Eastman has repeatedly tried to argue that he was advocating for something short of simply rejecting electors, despite that being the initial focus of the first of the two memos he filed. According to Jacobs’s testimony, Eastman on Jan. 5 “came into the meeting saying, ‘What I’m here to ask you to do is to reject the electors.’ ” As Trump had endorsed.

In other words, Trump and Eastman tried repeatedly to get Pence to impede the final counting of lawful electoral votes, and, once the count was halted by the riot, Trump did nothing for an extended period of time that would get the electoral-vote count back on track. In late January, Trump bolstered the idea that he intended to obstruct the finalization of the election broadly, saying in a statement that Pence on Jan. 6 “could have overturned the Election!”

The filing notes other points at which Trump tried to obstruct lawful functions, as when he contemplated overhauling the Justice Department to potentially provide a stamp of authority on his claims about rampant fraud. There were also those alternate slates of electors that Trump’s team encouraged to meet in mid-December, hoping to provide a pretext under which Congress could pretend to be considering two different submissions from states. One can understand how these might fold into a claim that Trump and his allies (including Eastman, who the filing says was aware of the alternate slates plan) were attempting to derail government functions.

All of this, of course, depends on Trump’s claims about rampant fraud in the 2020 election, claims that led directly to the rioters’ efforts to do what Pence wisely opted against. The filing offers some direct connections from Trump to that violence:

“[A] number specifically cited the President’s tweets asking his supporters to come to Washington, D.C. on January 6. For example, one defendant who later pleaded guilty to threatening Nancy Pelosi texted a family member on January 6 to say: “[Trump] wants heads and I’m going to deliver.”110 Another defendant released a statement through his attorney, stating: “I was in Washington, D.C. on January 6, 2021, because I believed I was following the instructions of former President Trump and he was my president and the commander-in-chief.”

That last message continued: “His statements also had me believing the election was stolen from him.”

And this brings us to the other half of the question of criminality.

The case for corrupt intent

One defense Trump can deploy against criminal charges is the idea that he sincerely believed that the election had been stolen from him and that he and his allies were trying to figure out how to derail a historic usurpation of the American presidency.

The committee’s filing spends a good deal of time offering evidence that Trump and his allies should certainly have not believed that the election was stolen. For example:

  • “President Trump’s legal team and his supporters took their [fraud] allegations to the courts, ultimately litigating and losing more than 60 challenges to the election results in seven States.”
  • “According to the President’s senior campaign advisor, soon after the election, a campaign data expert told the President ‘in pretty blunt terms’ that he was going to lose.”
  • In early December 2020, Attorney General William P. Barr “stated publicly that the ‘U.S. Justice Department ha[d] uncovered no evidence of widespread voter fraud that could change the outcome of the 2020 election,’ a position he reiterated on December 21 when rejecting calls to appoint a special prosecutor to investigate election fraud.”
  • On multiple occasions that month, other Justice Department officials “informed [Trump], both as to specific allegations and more generally, that the President’s claims of massive fraud sufficient to overturn the election were not supported by the evidence.”
  • In a well-documented Oval Office meeting on Dec. 15, Trump was told that “people are telling you things that are not right.”
  • In a Dec. 27, 2020, call, a senior Justice Department official told Trump “in very clear terms” that “the major allegations are not supported by the evidence developed” after investigating several swing states.

This is simply the official documentation of why Trump should have known his claims didn’t hold water. There was a widespread public conversation adjudicating the claims in the media, revealing quickly that none of his assertions about rampant fraud were valid. Officials in targeted states repeatedly offered evidence undercutting Trump’s assertions, evidence that received no response from Trump or his allies. The filing focuses on Trump’s claims about the election in Georgia.

On Jan. 3, Trump called Georgia Secretary of State Brad Raffensperger and outlined a number of unfounded claims about fraud as he asked the state to “find” enough votes to declare him the victor. The next day, a staffer from Raffensperger’s office held a lengthy news conference, rebutting the claims one by one. During his speech at the Capitol on Jan. 6, though, Trump continued to make those debunked claims.

One of the fundamental questions of the Trump era in politics has been the extent to which he believes the false claims he makes. When he would tweet debunked nonsense as president, for example, observers would quickly point out that it had been debunked. Trump so frequently repeated long-debunked claims that The Washington Post’s fact-checking team invented a new category of falsehood to capture those events.

Should charges be brought against Trump, this is likely to be a central question. Trump was told repeatedly by experts, government officials and the media that what he was saying was false. But Trump also repeatedly ignored and derided the opinions of experts, government officials and the media and may have come to believe the assertions that he was making. If he tried to steal power out of a sincere delusion that it was warranted, is that a sufficient condition for innocence?

At the very least, Trump’s long-standing habit of being immune to reality provides him some useful political cover. At least in this case.

The other questions of culpability

Those possible criminal violations are not the only threats Trump faces.

In the filing itself, for example, the committee points to Trump’s refusal to accept the reality that no fraud occurred in Georgia as evidence supporting another possible crime: common law fraud. To meet a criminal standard under the statute in D.C., where the committee alleges this crime occurred, Trump would have had to make “(1) a false representation; (2) in reference to material fact; (3) made with knowledge of its falsity; (4) with the intent to deceive; and (5) action is taken in reliance upon the representation.”

As articulated in the filing, (1) and (2) are Trump’s false claim that ballots were illegally counted in Fulton County, a claim made based on misrepresented security footage. When we hit (3) we again see the utility of Trump’s demonstrated immunity to reality: Did he know that the claim that he centered in campaign ads and during his speech on Jan. 6 (meeting part (5)) was false (meeting part (4))? The filing again makes clear that he should have known, and any insistence that he didn’t depends heavily on an idea that Trump somehow lacks competence to adjudicate between true and false information. But it is a defense.

In other contexts, that defense may be less useful.

Last month, D.C. District Judge Amit Mehta published a remarkable opinion in which he allowed several civil lawsuits against Trump to move forward. In it, he noted that there was evidence that Trump had engaged in a civil conspiracy — that is, not necessarily a criminal one — with far-right extremist groups such as the Oath Keepers that on Jan. 6 aimed to block the finalization of the election. The bar is lower here, with participants in the conspiracy needing only to have “a mutual understanding to try to accomplish a common and unlawful plan” — like blocking the counting of electoral votes — “[the] general scope of which were known to each person who is to be held responsible for its consequences,” though not necessarily the details.

Again, this is not a determination that such a conspiracy unfolded, just that Mehta can’t dismiss the lawsuits because there’s sufficient evidence to think that it might have. The Jan. 6 committee’s filing points to Mehta’s opinion as “demonstrat[ing] the breadth of conspiratorial conduct and further support[ing] the existence of common law fraud.”

There was a less-noticed development on Wednesday that adds another complicating layer to the question of how Trump might have been more intertwined in the actions that unfolded Jan. 6 on Capitol Hill. In a plea agreement with the federal government, an Oath Keeper named Joshua James pleaded guilty not only to obstructing an official proceeding — the charge floated by the Jan. 6 committee as potentially applying to Trump — but also to “seditious conspiracy.”

When a group of Oath Keepers was charged with seditious conspiracy in January (that is, a conspiracy aimed at sedition, rebelling against the government), it marked a significant escalation in the government’s treatment of those who participated in violence on Jan. 6. James’s plea agreement is an agreement that he was part of precisely such a conspiracy.

But James’s role on Jan. 6 is interesting for another reason, as journalist Marcy Wheeler notes. That morning, before he breached the Capitol, he was part of a security detail that shuttled longtime Trump adviser Roger Stone around Washington, apparently including to the Willard Hotel, where Trump’s allies were trying to persuade members of Congress to block the counting of electors. In his opinion on the civil suits, Mehta noted that Stone’s involvement with the Oath Keepers “might prove … to be important.” James suggests one way that could be the case.

Over the past 24 hours, we haven’t learned much more about what Trump was doing in the days before Jan. 6 and on the day itself. But we have learned a lot about the context in which those actions were occurring and how those evaluating his actions believe they might have violated the law.

Trump faces both civil and criminal threats because of his efforts to overturn the 2020 election. But any accountability may come down to one of the central questions of his presidency: Does he actually believe the false assertions he amplifies?

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