The House Select Committee to Investigate the January 6th Attack on the U.S. Capitol has presented evidence it says shows then-President Donald Trump drove an effort to overturn the 2020 election results and hold onto power, based on allegations of voter fraud he knew were false.
Detailed testimony from Trump’s inner circle depicts an unhinged man throwing plates and trying to strangle his protective staff when his efforts were foiled at different turns.
But, if true, is any of it a crime?
As evidence of Trump’s involvement mounts, the Department of Justice faces major political and constitutional questions about whether it can or should charge a former president with a crime. But if the DOJ decided the answer to those questions is yes, legal experts say the evidence presented so far in the hearings shows a range of possible crimes the former president may have committed in the course of his efforts to overturn the results of the 2020 presidential election.
The DOJ is interested in what the committee knows. In a June 15 letter to the select committee, top DOJ officials wrote that, based on the first two public hearings in June, the testimony collected by the committee is “potentially relevant to our overall criminal investigations” in connection with the Jan. 6, 2021, attack.
Summarizing the committee’s findings at its sixth hearing on June 28, committee Chairman Rep. Bennie Thompson (D-Miss.) said the committee had “laid out the details of a multipart pressure campaign driven by the former president aimed at overturning the results of the 2020 presidential election and blocking the transfer of power. We’ve shown that this effort was based on a lie — a lie that the election was stolen, tainted by widespread fraud: Donald Trump’s big lie.”
Inciting insurrection. Prosecuting Trump for inciting an insurrection would require prosecutors to prove he intended imminent lawless action when he spoke to the crowd at the Ellipse on Jan. 6.
The committee presented detailed evidence that Trump knew members of the crowd were armed when he told the crowd: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
Still, this would be a tough crime to prove, according to Barbara McQuade, a former U.S. Attorney for the Eastern District of Michigan and current professor at the University of Michigan Law School.
At one point during his speech, Trump also urged against violence. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” he said.
“This crime seems unlikely because of the First Amendment implications and Trump’s inclusion of the word ‘peacefully,’” said McQuade.
Conspiracy to defraud the U.S. This is a crime that requires two or more people working together to undermine a core function of government, legal experts said. It requires proving fraudulent intent. The crime carries a maximum statutory sentence of five years.
The committee is working to establish that Trump knew widespread voter fraud was a myth, yet he tried to prevent the certification of the presidential election on Jan. 6 anyway, and that he had help from members of Congress and others in his inner circle.
Trump’s activities that could be relevant to conspiracy to defraud the U.S. might include his failed efforts to weaponize the DOJ as a vehicle for his false election claims in the waning days of his administration, as well as interfering with the Jan. 6 counting of Electoral College votes, said Donald Sherman, vice president and chief legal counsel for Citizens for Responsibility and Ethics in Washington (CREW), a Washington-based watchdog group.
“If he knew he was lying about election fraud and nonetheless sought to disrupt the transfer of power to Joe Biden, this crime could be established,” said McQuade.
The select committee has played video clips during public hearings of officials in Trump’s inner circle testifying that they informed Trump he lost the election. Former attorney general Bill Barr testified that in the course of at least three meetings with Trump in November and December 2020, “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.”
“That is how you start to prove a corrupt intent,” Sherman said. “I think that’s exactly what prosecutors would need to be able to demonstrate in order to bring charges and ultimately win a conviction.”
Conspiracy to obstruct an official proceeding. Evidence presented at the committee’s hearings so far shows Trump was informed he lost the election, yet whipped an armed crowd into a frenzy on the National Mall with lies about the election hours before Congress was expected to certify electoral results. This is a charge that could stem from Trump’s efforts that culminated in the disruption of the counting and certification of the Electoral College votes by a joint session of Congress on Jan. 6, 2021.
In a civil legal filing earlier this year — responding to a federal lawsuit filed by Trump attorney John Eastman seeking to resist turning over more than 100 emails — the Jan. 6 committee argued that Trump violated a statute, 1512 (c) (2), which criminalizes obstruction or attempted obstruction of an official proceeding.
U.S. District Judge David O. Carter agreed. “Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” Carter wrote in an order in March.
In the order rejecting Eastman’s claims of privilege on the basis that a crime had likely been committed, Carter described the scheme by Eastman and Trump as “a coup in search of a legal theory” and said “the illegality of the plan was obvious.”
State election law. Prosecution of Trump and his associates could happen at either the federal or the state level, according to legal experts.
“It’s also likely that Trump and his allies violated Georgia state law, which criminalizes the solicitation of election fraud,” said Sherman, of CREW, who was formerly chief oversight counsel to Rep. Elijah Cummings.
A grand jury in Fulton County, Georgia, is investigating potential criminal interference with the 2020 election in the state. On July 5, it issued seven subpoenas to key Trumpworld figures including attorney Rudy Giuliani and Sen. Lindsey Graham (R-S.C.), as well as five other Trump attorneys.
At its June 21 hearing, the select committee presented evidence concerning efforts by Trump and his associates to interfere with electoral results. The committee played a recording from a Jan. 2, 2021, phone call in which Trump told Georgia state officials: “I just want to find 11,780 votes, which is one more than we have because we won the state.”
Seditious conspiracy. Under federal law, seditious conspiracy involves working with others to overthrow the United States government or “to prevent, hinder, or delay the execution of any law of the United States.”
The Department of Justice has already brought the charge against 11 members of the Oath Keepers, who were indicted in January, and five members of the Proud Boys, who were indicted last month, in connection with their alleged role in the Jan. 6 attack. The charge carries a maximum penalty of 20 years in prison.
“The purpose of the conspiracy was to oppose the lawful transfer of presidential power by force, by preventing, hindering or delaying by force the execution of the laws governing the transfer of power, including the Twelfth and Twentieth Amendments to the Constitution,” federal prosecutors said in the Proud Boys case.
McQuade said bringing seditious conspiracy charges against Trump would require proving he agreed with others to use force against the U.S. government to prevent the execution of the law. “If, for example, he was working in agreement with the Proud Boys or Oath Keepers to intentionally breach the Capitol to stop the vote count, this crime could be established,” McQuade said.
“Far too dangerous”
Bringing criminal charges against a former president would be unprecedented, legal experts said. And if Trump declares his presidential candidacy in 2024, the Justice Department may be in a delicate position. Trump’s office did not respond to a request for comment on this story.
If Trump is charged, McQuade said, Trump may portray himself as a martyr on the campaign trail and attack DOJ’s independence and objectivity.
“He would likely file every legal challenge imaginable, resulting in lengthy delays in trial. Charges could result in civil unrest or even civil war. Charges also could create a dangerous precedent for future attorneys general to charge former presidents for less legitimate reasons,” she said. “However, not charging him also creates danger. An important part of criminal charges is deterrence. If not charged, Trump and others would be emboldened to try again.”
Sherman noted that a bipartisan majority of the House and the Senate voted to impeach and convict Trump in January and February of 2021, and the bipartisan select committee “has already presented pretty credible allegations of criminal misconduct by the president.”
“The alternative, which is allowing a president of any party to be lawless without consequences, is far too dangerous,” Sherman said. “To not investigate and potentially pursue charges against the president, for fear being appearing to be political is, itself, political.”
Thanks to Lillian Barkley and Alicia Benjamin for copy editing this article.