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What crimes might the Jan. 6 committee say Trump committed?

The Jan. 6 House committee airs a video of President Donald Trump. (Jabin Botsford/The Washington Post)
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It’s not clear if the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol will formally say that former president Donald Trump broke the law in relation to the attack or to his efforts to overturn election results. Even if they did, it’s far from certain Trump would be prosecuted for these crimes.

Congress doesn’t have the power to prosecute; the most they could do is issue a criminal referral to the Justice Department to pursue. But that’s more like a recommendation than anything else. A congressional criminal referral carries no legal weight, notes The Post’s Jacqueline Alemany and Devlin Barrett.

But it would still be symbolically significant if a committee made up of Democrats and two Republicans, after nearly a year of investigating, formally accused Trump of committing crimes. He would go down in the history books as having been impeached twice (and acquitted twice by the Senate), and accused of a crime or crimes by Congress. No U.S. president has ever been charged with a crime associated with his presidency.

Deciding whether something is a crime is not black and white. There are different standards for different crimes — plus, different parts of the government use different standards. Congress issues criminal referrals when it thinks a crime may have been committed. Prosecutors, though, are supposed to only charge cases they think they can successfully argue to the jury standard of “beyond a reasonable doubt.”

Either way, these allegations of wrongdoing are shaping the committee’s investigation into the attack and how they present their findings to the American public.

So what might those crimes be? Here’s a look at what’s been bubbling up in the committee’s investigation.

1. Obstruction of an official proceeding of Congress

It is illegal to obstruct an official proceeding of Congress, and on Jan. 6, 2021, Congress convened in what very much was an official proceeding: to hear the tally of electoral votes from states, certifying Joe Biden won the presidential election.

This is the crime that many of the Jan. 6 attackers have been charged with, notes former federal prosecutor Barbara McQuade.

Some committee members — mainly Rep. Liz Cheney (R-Wyo.) — have raised the question of whether Trump broke this federal law by trying to stop lawmakers from certifying Biden’s win. They aim to show that the attack on the Capitol was not a spontaneous outburst, but that Trump and his allies specifically planned to disrupt the congressional counting.

But to prove that, they need to prove intent — and it will be key for them to demonstrate two things:

1. Trump knew he lost the election but pushed lies about it anyway. The committee spent the first two hearings playing video after video of Trump campaign aides and even former attorney general William P. Barr saying they knew Trump had lost the election and told him so. “I made it clear I did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit,” Barr said in testimony taped earlier this year.

Former attorney general William P. Barr told the Jan. 6 select committee that President Donald Trump made election fraud claims before evidence appeared. (Video: The Washington Post)

2. Why Trump made no effort to tell the rioters to leave the Capitol for 187 minutes as the attack unfolded, even as some of his Republican allies pleaded with his chief of staff to get the president to speak up. Though doing nothing is not a crime, the president’s inaction in this period might be evidence of his intent.

In March, a federal judge wrote that Trump and one of his lawyers, John Eastman, “more likely than not” committed this crime. (The case did not center on Trump, but rather what evidence the Jan. 6 committee could have.) Judge David O. Carter pointed toward the committee’s findings that Trump had meetings before Jan. 6 explicitly to pressure Vice President Mike Pence to disrupt the joint session of Congress.

Because Trump “likely knew” his plan to disrupt the count was wrongful, his “mindset exceeds the threshold for acting ‘corruptly,’” Carter wrote in his ruling.

2. Conspiracy to defraud the United States

Proving this crime requires showing that “at least two people entered into an agreement to obstruct a lawful function of the government, by deceitful or dishonest means.”

Here, too, Carter has chimed in to say there is “strong circumstantial evidence” that Trump committed this crime. He points to the fact that Trump and Eastman met with high-ranking officials to advance a plan to pressure Pence to reject states’ electoral results on Jan. 6. (That would be the an “agreement” to obstruct a “lawful function of government.“)

And Eastman and Trump likely knew their plan was illegal because numerous high-level colleagues told them so, Carter argues.

In the first Jan. 6 hearing, Cheney described Eastman as a crucial figure in the plot to overturn the election results. And she said Eastman didn’t believe the legal argument he was making — potentially indicating intent to commit a crime. “In fact, a month before the 2020 election, Eastman took exactly the opposite view on the same legal issues,” she said.

3. Seditious conspiracy

This is one of the most serious crimes the committee could charge Trump with. It would require the committee to tie Trump directly to the leaders of the mob that attacked the Capitol, McQuade said.

Leaders of the far-right militia groups Oath Keepers and Proud Boys have been charged with this crime. Seditious conspiracy is a rare and serious charge, alleging they forcefully tried to overthrow the peaceful transfer of presidential power. A handful of attackers have pleaded guilty to it.

The committee would need to show that Trump was part of an agreement that someone would physically attack the Capitol to stop the election certification of his opponent, McQuade said.

The committee spent a fair amount of time in its first prime-time hearing laying out how they think Trump influenced these militia groups, who appeared to hang onto his every tweet, and how these groups appeared to plan ahead to attack the Capitol — arriving there before Trump even delivered his inflammatory speech down the road earlier that day.

4. Wire fraud

This is a potential crime the committee floated in its Monday hearing: that Trump may have committed fraud by fundraising on the false basis that the election was stolen. As The Post’s Aaron Blake reports:

In a video played at the end of the hearing, committee investigator Amanda Wick detailed Trump’s fundraising practices. She said he raised $250 million after the election, while pushing for donors to support something called his “Official Election Defense Fund.”
But she disclosed that Trump aides Hanna Allred and Gary Coby said no fund technically existed. She also noted that most of the money went to Trump’s Save America PAC and that very little was used for challenging the election results.

Wire fraud, McQuade said, occurs when someone causes a wire transmission to advance a scheme to defraud. “If Trump solicited funds for one purpose and knowingly used the funds for another, he could be guilty of wire fraud,” she said.

The question the committee must answer here is similar to one it must answer for all these crimes: Did Trump believe what he was saying? He may have gone through the motions of a crime, but if he honestly thought the money was being used to fight his election legal battles, that could be legal protection in itself.

“One of the weird things about all of this,” said Berkley Law Professor Orin Kerr, "is that Trump was doing things which any normal person would have realized was unlawful or would have realized there was no evidence for. So, how do you assess the psychology of Donald J. Trump in terms of what he was thinking?”

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