Criminal Referrals Against Donald Trump Were Inevitable

Yesterday, the House Select Committee investigating the events of January 6, 2021, and the efforts of Donald Trump to stage a coup made four criminal referrals against Trump to the Department of Justice. Tomorrow its full report will be released which will no doubt be scathing in its reveiw of Trump's coup attempt and the actions of his co-conspirators.    Anyone other than the most died in the wool Trump cultists who have their heads firmly up their asses and/or are incapable of reason when faced with documented facts will realize that the Committee truly had no other option and that the referrals were inevitable if the rule of law is to survive in this country.  Trump, the propagandists on Fox News and other far right false "news" outlets, and Trump's political whores within  the Republican Party  will be foaming at the mouth and claiming the referrals were purely political, but sane people who read the report and/or pay attention will see that claim for the lie that it is (is there ever a time when Trump doesn't lie?).  Numerous columns and news article look at this historic action, including in the New York Times and the Washington Post.  One can only hope that the Special Counsel pushes for prosecution on all charges.  Here are highlights from the Post:

Donald Trump cannot pass off the House Jan. 6 select committee’s final report as mere partisan opinion. His criminal liability is based on a mound of evidence, as the committee meticulously detailed.

Moreover, the committee’s “roadmap to justice” is not just a restatement of facts already made public by the committee. It is the foundation that the Justice Department could use to prosecute the former president and his underlings to the fullest extent of the law.

The report’s executive summary, which the committee released on Monday, includes four criminal referrals for Trump: insurrection, obstruction of an official proceeding, conspiracy to defraud the United States and conspiracy to make a false statement. . . . The committee leaves open the possibility that others might be referred for participation in such crimes, leaving it to the Justice Department to investigate.

At its core, the report lays out the evidence for critical facts:

• Trump attempted to stay in power despite the vote of the American people.
• He tried to concoct phony slates of electors to change the electoral vote.
• He tried to pressure former vice president Mike Pence to disregard the electoral count.
• When that did not work, he summoned the mob to the capital on Jan. 6, 2021, urged rally attendees (some of whom were armed) to march to the Capitol and did nothing for 187 minutes to stop the violence that ensued. In fact, while the insurrection was underway, he sent out a tweet putting a target on Pence’s back.

Never in the history of the republic has Congress taken such a momentous step of issuing a criminal referral of a former president. Then again, never in our history has a president attempted to prevent the peaceful transfer of power.

While a referral has no legal significance, the roadmap puts great pressure on the Justice Department. If special counsel Jack Smith decides not to indict Trump, he will have to explain why his judgment differs from that of a congressional committee that painstakingly examined the evidence and presented it to the American people.

Let’s take a look at each of the potential charges against Trump:

Insurrection

In some sense, this referral should come as no surprise. The entire country saw Trump unleash the mob to stop Congress from counting the electoral votes. A majority of the House impeached Trump specifically for incitement of insurrection. And 57 senators voted to convict him on that charge.

The statute concerning such a criminal charge is fairly straightforward. Section 2383 of Title 18 of the U.S. Code states: “Whoever 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, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

[P]rosecutors in an insurrection case would not need to prove that Trump agreed to overthrow the government, as would be required for a seditious conspiracy charge. They would only need prove he assisted in opposing the authority of the government.

Moreover, conviction under Section 2383 would bar Trump from holding federal office.

Obstructing a congressional proceeding and conspiracy to defraud the United States

These potential charges are nothing new. Legal scholars as well as federal District Judge David O. Carter (in adjudicating Eastman’s attempts to avoid complying with congressional subpoenas based on client-attorney privilege) have found it more likely than not that Trump committed such crimes. (The committee’s summary devotes substantial space to reviewing Carter’s analysis.)

In fact, multiple Jan. 6 insurrectionists have either pleaded guilty to or been convicted of obstructing a congressional proceeding under Section 1512(c) of Title 18. The executive summary released by the committee explains:

Sufficient evidence exists of one or more potential violations of 18 U.S.C. § 1512(c) for a criminal referral of President Trump based solely on his plan to get Vice President Pence to prevent certification of the election at the Joint Session of Congress. Those facts standing alone are sufficient.

Trump’s plot to create alternative electors warrants a conspiracy to defraud charge for similar reasons. This is based on Section 371 of Title 18, which the Supreme Court has ruled makes it a crime to obstruct lawful governmental functions through "deceit, craft or trickery, [or] by means that are dishonest.”

Conspiracy to make a false statement

This is based on Section 1001 of Title 18, which applies to anyone who “makes any materially false, fictitious, or fraudulent statement or representation” to Congress or who “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”

Trump’s attempt to compile phony alternate electors to submit to Congress could subject him to prosecution for this crime. The committee finds:

The Committee believes that sufficient evidence exists for a criminal referral of President Trump for illegally engaging in a conspiracy to violate Section 1001; the evidence indicates that he 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 . . . .  

The Justice Department is by no means limited to these pathways of prosecution. The committee holds out the possibility that the department might pursue other charges such as seditious conspiracy if it uncovers evidence that Trump conspired with the violent armed groups that stormed the Capitol.

Many Americans have rightly wondered whether Trump would ever be held accountable for his misdeeds. Today marks a critical, unprecedented and justifiable step toward making that happen. The ball is now in Jack Smith’s court to uphold the rule of law.