The January 6 Committee’s Best and Worst Cases Against Trump (original) (raw)

The January 6 committee gives the Justice Department a grab bag of options.

By ,a contributing editor who covers legal affairs. He is an attorney and former federal prosecutor.

Photo-Illustration: Intelligencer. Source photos: Getty Images

When the January 6 committee finished its summerlong series of hearings in late July, it was clear the panel had presented a credible case that Donald Trump broke multiple criminal laws during his monthslong campaign to stay in power after the 2020 election. There were reasonable questions to be asked about the relative strength of the committee’s various theories and corresponding evidence, but the biggest question of all was what the Justice Department intended to do about it.

The 154-page executive summary of the report adds little to the committee’s case over the summer, but if one of the panel’s most prominent goals was to provoke a change in posture toward Trump at the Justice Department — to persuade Attorney General Merrick Garland and his team to scrutinize the former president’s conduct much more closely and aggressively — that mission appears, provisionally at least, to have been accomplished. In August, the department searched Trump’s home at Mar-a-Lago as part of an investigation into his potential mishandling of sensitive government documents. Prosecutors working on the January 6 investigation have recently taken newly assertive (and long overdue) steps to obtain testimony from senior Trump White House officials. After the GOP’s dismal performance in the midterm elections and the formal announcement of Trump’s 2024 reelection bid (an effort that itself seems designed in significant part to fend off potential legal threats), Garland announced the appointment of a special counsel to oversee the investigations concerning the documents at Mar-a-Lago as well as Trump’s conduct in the run-up to the January 6 insurrection. Just last week, the Washington Post reported that the special counsel’s office had subpoenaed Georgia secretary of State Brad Raffensperger and state and local officials in other 2020 battleground states — evidence that prosecutors could and should have obtained more than a year and a half ago.

The committee’s report and referral of Trump to the Justice Department for prosecution are undeniably significant both historically and politically, but the legally relevant facts would be familiar to anyone who watched the hearings closely over the summer. The committee’s strongest theory for prosecuting Trump remains its most prominent — that he could be held criminally liable for obstructing Congress or conspiring to prevent the certification of Biden’s victory based on his repeated, demonstrably false claims about the election being stolen through widespread voter fraud. As the committee’s summary puts it, Trump was “informed over and over again, by his senior appointees, campaign experts, and those who had served him for years, that his election fraud allegations were nonsense.” But rather than listen to them, Trump enlisted people like Rudy Giuliani and John Eastman, “who were not scrupulous with the facts and were willing to be dishonest,” according to the summary. There is no single piece of evidence demonstrating that Trump knew he was lying throughout this period, but the committee’s circumstantial evidence on this score is robust. Yet it matters legally that Trump knew he was lying because the relevant charges would require prosecutors to show that he had intentionally engaged in deceptive or corrupt conduct to prevent Congress’s certification of Biden’s win.

The committee’s remaining theories tend to get shakier as the summary progresses — apparently owing in large part to investigative limitations and the intransigence of Republican witnesses — but they all warrant the department’s attention.

First, they continue to advance the idea that Trump and Eastman engaged in criminal conduct by pressuring Vice-President Mike Pence to unilaterally refuse to certify Biden’s victory. The underlying premise is that there was no credible legal basis for Pence to reject any of the duly certified slates of electors, but given the publicly available evidence, that theory is stronger as applied to Eastman himself — who is, nominally at least, a lawyer who should understand these things — than to Trump. It’s probably no accident that Trump so often manages to ally himself with some of the country’s worst lawyers as long as they say and do what he wants, but the department would likely want clearer evidence that Trump himself understood the deficiencies of Eastman’s claims before seriously considering charges against him.

The same cautionary note applies to the committee’s suggestion that Trump may be criminally liable for the use of so-called alternate (or “fake”) Trump electors in seven states. The committee contends that Trump’s involvement relates to two criminal statutes — conspiring to defraud the government and making false statements to the government — but there is very little in the report connecting him to the specific machinations of the scheme, which are important for assessing who may have actual criminal liability based on their involvement. Most prominently, the committee notes that “Trump personally conducted a teleconference with Eastman and Republican National Committee chair Ronna McDaniel” in early December 2020 about this effort and that McDaniel “agreed to provide” him with “assistance” with the plan. Yet it’s unclear how much he knew beyond the broad outlines of the effort, which appears to have been run by Eastman and another once-obscure but newly infamous lawyer named Kenneth Chesebro.

The committee’s most ambitious, legally intriguing contention is that Trump may be criminally liable under the insurrection statute because he “incited,” “assisted,” or “aided and comforted” those engaged in violence “or other lawless activity” at the Capitol. The committee was evidently unable to establish that Trump knew about the violence planned by right-wing militias in advance, though that remains impossible to rule out at this stage given the number of potential intermediaries and Trump surrogates who took the Fifth before the committee.

The committee’s argument that Trump may be liable for insurrection is instead based on an affirmative theory of verbal incitement coupled with Trump’s inaction during the notorious 187 minutes that he watched the violence from the White House, but both are more complex than the committee lets on. The committee claims that Trump deliberately inflamed the mob when he delivered his speech to them before they marched to the Capitol and that he further “inflamed and exacerbated the mob violence” when he sent a tweet at 2:24 p.m. stating that Pence “didn’t have the courage to do what should have been done.” But, as many people have noted in the nearly two years since, potentially thorny First Amendment issues would accompany any criminal case that hinges on these statements.

As for Trump’s inaction, the committee sums up the record as follows: “Trump watched the violence on television from a dining room adjacent to the Oval Office, calling Senators to urge them to help him delay the electoral count, but refusing to supply the specific help that everyone knew was unequivocally required.” As I have noted before, this account seems to have been constructed largely by negative implication based on testimony from senior Trump-administration officials, like White House counsel Pat Cipollone, who told the panel what they said to Trump during this period but refused to disclose what he said in response on the theory that those communications are covered by executive privilege.

The committee’s report acknowledges this forthrightly and explicitly notes — correctly — that the Justice Department may be able to construct a more fulsome record through criminal investigative tools. In particular, the committee writes that Cipollone “did not disclose a number of direct communications with President Trump in light of concerns about Executive Privilege” but that “the Committee believes that Cipollone and others can provide direct testimony” to the department “establishing that President Trump refused repeatedly, for multiple hours, to make a public statement directing his violent and lawless supporters to leave the Capitol.”

As things now stand, the theory that Trump bears criminal responsibility for the actions of the rioters rests in significant part on his failure to act, but, generally speaking, prosecutors and courts do not hold people criminally liable for failing (or even refusing) to do something unless there was a clear, specific duty requiring them to do so. One of the reasons for this is, as a society, we do not want to force people to put themselves at risk to prevent harm to someone else — for instance, by holding someone criminally liable for failing to try to stop an assault on the street that was being perpetrated by a stranger. That particular rationale has much less intuitive force in this context — the rare situation in which, as the committee has effectively argued, it would have been costless, riskless, and, in fact, extraordinarily easy for Trump to intervene in a decisive way — but even so, it’s hard to believe the Justice Department would ultimately endorse the idea that Trump could be criminally prosecuted based on his extraordinarily broad constitutional authority as the head of the executive branch. It is a literally unprecedented theory that could invite excessive and unwarranted criminal scrutiny for current and future presidents who decline to take controversial political actions that partisans disagree with in entirely different settings, such as opting not to take the most draconian measures available to prevent illegal immigration at the southern border.

Still, on this point and elsewhere, the committee correctly notes that the Justice Department has more potent means to supplement and fill out this factual record and, in particular, “may be in a position to utilize investigative tools, including search warrants and grand juries, superior to the means the Committee has for obtaining relevant information and testimony.” The committee specifically suggests the department subpoena a handful of prominent Republican political figures — former White House chief of staff Mark Meadows, Republican House leader Kevin McCarthy, and congressmen Jim Jordan and Scott Perry, all of whom appear “to have had materially relevant communications with Donald Trump or others in the White House but who failed to comply with the Select Committee’s subpoenas.”

There are a variety of other obvious ways in which the Justice Department could improve upon the committee’s work. There remains an odd level of credulity provided to anyone who gave testimony that was useful to the committee, including people like former attorney general Bill Barr and senior officials in the Trump DOJ whose hands are far from clean. The committee also excels at highlighting the worst parts of the evidentiary record it developed, but the department will presumably take a far more comprehensive and exacting look, including by holistically evaluating key witness testimony for exculpatory evidence or material inconsistencies that will be apparent only after it has access to the committee’s raw investigative material.

The committee has also wrapped its findings in a broad, overarching theory that Trump masterminded a concerted, multipart criminal conspiracy to remain in power, but it is unnecessary for the Justice Department to adopt such an expansive legal or factual theory if the evidence gathered by prosecutors ultimately doesn’t come together as neatly as the committee’s presentation. It’s possible that the time period and course of conduct in question comprised a variety of ad hoc chicanery and criminality on the part of Trump and others, with a variety of overlapping conspiracies or perhaps disconnected acts of criminal conduct. The department can evaluate and reassemble those pieces under different charging theories if it so chooses, effectively separating the legal wheat from the chaff based on the strongest available evidence and legal theories.

On the evidence presented by the committee, the strongest theory is the first one — that Trump knowingly lied for months to the American public about demonstrably false claims of election fraud in order to stay in power. If all we ever had was the information produced by the committee, the department would have a solid, chargeable case against Trump on this theory. The rest presents the Justice Department with a grab bag of options that it could choose to pursue but that ultimately relies on the answers to questions the committee could not conclusively answer and on the department’s more rigorous fact-and-context-specific assessment of potential legal defenses Trump could raise.

That process of legal evaluation and triage is par for the course for federal prosecutors, but pretty much everything else about the situation is obviously far from ordinary. If Trump wins the GOP nomination and the general election in 2024, he will shut down any pending federal criminal investigation or prosecution that implicates him. Needless to say, there is no way to definitively predict what the department will do now that the ball is decidedly and unquestionably in its court, but this is now as much a political fight as a legal one.

The January 6 Committee’s Best and Worst Cases Against Trump