The House select committee investigating the attack on the Capitol on January 6, 2021, formally recommended to the Justice Department on Monday that former President Donald Trump be criminally prosecuted. The committee accused him of violating four federal laws: inciting insurrection, obstructing an act of Congress, conspiring to defraud the United States, and conspiring to make a false statement. The committee’s action is unprecedented. No President in American history has ever before been referred by Congress for criminal prosecution.
In a hundred-and-fifty-four-page executive summary of its findings, the committee said that Trump—more than any other individual—was responsible for the storming of the Capitol by a violent mob that tried to disrupt the certification of his defeat in the 2020 election.“The central cause of Jan. 6th was one man, former President Donald Trump, who many others followed,” the report states. “None of the events of Jan. 6th would have happened without him.”
The committee also identified five Trump allies for potential prosecution for their roles in aiding his effort to overturn the 2020 election: the former White House chief of staff Mark Meadows and four lawyers: Rudolph W. Giuliani, Jeffrey Clark, John Eastman, and Kenneth Chesebro. Among other findings, the committee concluded that the attempt by Eastman, a Trump legal adviser, to submit slates of fake, pro-Trump electors to Congress and the National Archives constituted making “materially false statements to the federal government.”
In November, Attorney General Merrick Garland appointed a special counsel, Jack Smith, to take over the Justice Department’s own investigations of Trump’s actions on January 6th and of his alleged mishandling of classified documents. The House select committee has no formal prosecutorial authority, so the referrals have only symbolic power. Law-enforcement officials, however, told me that the most important contribution that the committee can make to the ongoing Trump investigations is to immediately give prosecutors access to the more than a thousand witness interviews the committee conducted over the past year. The committee has also gathered more than a million documents related to the January 6th attack. “We have been very clear in saying that we want everything,” one law-enforcement official told me. “We still don’t have all of them.”
The report contains new information that could aid prosecutors. It describes a text sent by the Trump adviser Hope Hicks to a campaign aide, in which she stated that, before the riot, aides had repeatedly pressed the President to urge his supporters to remain peaceful. “I suggested it several times Monday and Tuesday and he refused,” Hicks wrote. She said that another senior adviser, Eric Herschmann, told her that he had made the same recommendation to Trump, but the President had refused to speak out against violence.
In a conversation with his adviser Kellyanne Conway, which took place the day after the riot, Trump downplayed the significance of the attack. Conway said that after she had described the situation as “terrible” and “crazy” Trump deflected. “No, these people are upset,” he said. “They’re very upset.”
The executive summary also includes new evidence demonstrating that Trump knew his claims about the 2020 election were false. Robert C. O’Brien, who served as Trump’s last national-security adviser, said that he dismissed the theory that voting machines had been hacked, during a December 18th call to the Oval Office. “Somebody asked me, was there—did I have any evidence of election fraud in the voting machines or foreign interference in our voting machines,” O’Brien said. “And I said, no, we’ve looked into that and there’s no evidence of it.” The White House press secretary, Kayleigh McEnany, said that she tried to dissuade Trump as well, by “waving him off” the theory, but Trump subsequently tweeted about it anyway.
Legal experts have said that such evidence would bolster prosecutors’ chances of convincing a jury that Trump was intentionally defrauding the U.S. when he tried to block the certification of the results. The referrals, depending on their exact content, will be reviewed by the office of the special counsel or by the U.S. Attorney’s Office for Washington D.C., which has prosecuted hundreds of rioters who entered the Capitol.
Ilya Somin, a law professor at George Mason University, told me that he believed the committee’s referral has increased the odds that Trump will face prosecution. “While it’s still not completely certain that Trump will be prosecuted, I think the referral and the appointment of the special counsel make it more likely that it will happen,” he said.
For the purposes of the committee, whether its referrals result in actual prosecutions may not matter. A congressional committee has very different goals from a criminal prosecutor. Investigations by Congress are, by their nature, designed to unearth facts that sway public opinion. Some of the January 6th committee’s methods, including its effective use of snippets of testimony in videos produced for public airing, have prompted complaints about selective editing. But any committee’s ends are inherently political. A criminal prosecutor faces far more restrictions and must convince a jury, beyond a reasonable doubt, that a defendant committed a crime.
The poor performance of Trump-backed candidates in the midterms suggests that the committee’s public hearings have already tarnished Trump politically, particularly among independents and moderate Republicans. And, now, with its criminal referrals, the committee has placed Trump in a position of political ignominy occupied by no other American President. ♦