What the Jan. 6 Committee criminal referrals against Trump mean

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Decoding every Jan. 6 committee criminal referral against Donald Trump

The House panel investigating the Jan. 6 attack on the U.S. Capitol voted to make multiple criminal referrals to the Justice Department related to former president Donald Trump’s alleged efforts to overturn the 2020 presidential election.

At a dramatic final meeting that capped off more than a year of investigation, the House’s nine-member Select Committee to Investigate the January 6th Attack on the United States Capitol voted unanimously to make the referrals, which cite statutes that could lead to years-long prison sentences or disqualify Trump from holding office if he is prosecuted and convicted.

Committee chairman Bennie Thompson, D-Miss., said in his opening statement that evidence the committee has gathered points to the need for “further action beyond the power of this committee or the Congress to help ensure accountability of the law — accountability that can only be found in the criminal justice system.”

“We’ve never had a president of the United States stir up a violent attempt to block the transfer of power,” Thompson said. “If we are to survive as a nation of laws and democracy, this can never happen again.”

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Committee members said their investigation produced evidence showing Trump was at the center of a multipart scheme to reverse the outcome of the 2020 election. That effort, committee members argued, involved summoning an armed mob to march on the Capitol and plotting to use “false electors” who would cast electoral votes for Trump instead of President Joe Biden.

“No man who would behave that way at that moment in time can ever serve in any position of authority in our nation again,” co-chair Liz Cheney, R-Wyo., said. “He is unfit for office.”

Rep. Jamie Raskin, D-Md., who headed a subcommittee that looked into the possibility of criminal referrals, spoke at the end of the hourlong meeting, and cited four crimes: obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and insurrection.

“Ours is not a system of justice where foot soldiers go to jail and the masterminds and the ringleaders get a free pass,” Raskin said, noting that hundreds of individual participants in the Jan. 6 insurrection have been charged with crimes already.

What’s the power of a criminal referral?

While the committee does not have the power to bring criminal charges — and its referrals to the Justice Department, which is already investigating Trump as part of multiple ongoing probes, are nonbinding — experts said the committee’s move Monday was significant.

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“Prosecutors make decisions based upon the evidence and the law,” said Norm Eisen, a senior fellow at the Brookings Institution who served as counsel to the House Judiciary Committee in Trump’s first impeachment. “While this is not binding, it’s certainly not symbolic because the Jan. 6 committee has imposed an enormous amount of evidence on the prosecution.”

Liz Hempowicz, vice president of policy and government affairs at the Project on Government Oversight, said that the insurrection referral may have significance beyond the criminal justice system.

Under federal law, anyone who engages in insurrection “shall be incapable of holding any office under the United States.” Trump said Nov. 16 that he is a candidate in the 2024 presidential race.

“A conviction is not necessary to trigger the disqualification clause,” she said. “A referral itself is rather significant. The evidence that will underlie the referral that we will see is also incredibly significant.”

The committee on Monday also released a 154-page document billed as the “introductory material” to its final report, which is expected to be delivered in full by the end of the year.

Here are the criminal statutes referred to the Justice Department, as outlined in the Jan. 6 committee’s hearings Monday and the introductory portion of its final report:

Obstruction of an Official Proceeding (18 U.S.C. § 1512(c))

Raskin on Monday said the committee had produced evidence showing Trump, his election lawyer John Eastman, and perhaps others, had obstructed the peaceful transfer of power from Trump to Biden following the 2020 election.

“The whole purpose and obvious effect of Trump’s scheme were to obstruct, influence and impede this official proceeding: the central moment for the transfer of power in the United States,” Raskin said.

If convicted, the federal criminal statute cited by the committee carries a maximum sentence of 20 years.


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Conspiracy to Defraud the United States (18 U.S.C. § 371)

The Jan. 6 committee’s report describes the actions of numerous Trump associates who allegedly aided in his effort to overturn the results of the 2020 presidential election, including chief of staff Mark Meadows and lawyers Kenneth Chesebro, Rudolph Giuliani and John Eastman.

“Former President Trump did not engage in a plan to defraud the United States acting alone,” Raskin claimed. “He entered into agreements, formal and informal, with several individuals who assisted him with his criminal objectives.”

Raskin said the committee is making referrals of conspiracy to defraud for Trump, Eastman and others. The federal criminal statute cited by the committee carries a maximum sentence of five years.

Conspiracy to Make a False Statement (18 U.S.C. §§ 371, 1001)

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Raskin said the committee determined that sufficient evidence exists for a criminal referral of Trump, and perhaps others, for engaging in a conspiracy to make false statements.

“The evidence suggests that President Trump conspired with others to submit slates of fake electors to Congress and the National Archives,” Raskin said. “This evidence set forth in our report is more than sufficient for a criminal referral of former president Donald J. Trump and others in connection with this offense.”

The committee didn’t try to determine all of the co-conspirators, Raskin said, but trusts the Justice Department “will be able to form a more complete picture through its own investigation.” The false statements statute cited by the committee carries a maximum penalty of eight years if convicted.

“Incite,” “Assist” or “Aid and Comfort” an Insurrection (18 U.S.C. § 2383)

Finally, Raskin said, the committee “believes that more than sufficient evidence exists for a criminal referral of former President Trump for assisting or aiding and comforting those at the capital who engaged in a violent attack of the United States.”

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“It is a grave federal offense anchored in the Constitution itself which repeatedly opposes domestic violence and indeed uses participation in insurrection by officeholders as automatic grounds for disqualification from ever holding public office again at the federal or state level,” Raskin said.

In addition to disqualification from holding office, the federal criminal statute cited by the committee carries a maximum prison penalty of 10 years if convicted.

What’s next?

Attorney General Merrick Garland on Nov. 18 named former federal prosecutor and international law judge Jack Smith as special counsel to take the lead on the Department of Justice’s ongoing investigations into Trump, which include his role in the events of Jan. 6 and the storage of classified material at Mar-a-Lago.

Barbara McQuade, a former U.S. Attorney and a professor at the University of Michigan Law School, said the Justice Department “will make its own independent assessments of the evidence, that which the committee has developed as well as evidence DOJ develops on its own.”

“I think DOJ would seriously consider charges for conspiracy to obstruct an official and conspiracy to defraud the United States based on evidence in the public domain,” she said. “Inciting insurrection strikes me as less likely because of potential First Amendment defenses.”

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The Jan. 6 committee on Monday also referred four Republican members to the House Ethics Committee for failure to comply with subpoenas: Minority Leader Kevin McCarthy and Andy Biggs of Arizona, Jim Jordan of Ohio and Scott Perry of Pennsylvania.

“The Committee also believes that each of these individuals, along with other Members who attended the Dec. 21 planning meeting with President Trump at the White House, should be questioned in a public forum about their advance knowledge of and role in President Trump’s plan to prevent the peaceful transition of power,” the report states.

Thanks to Dave Tepps for copy editing this article.

  • Steve Reilly
    Steve Reilly

    Investigative Reporter

    Steve Reilly is an investigative reporter for Grid focusing on threats to democracy.

  • Maggie Severns
    Maggie Severns

    Domestic Policy Reporter

    Maggie Severns is a policy reporter for Grid covering complex policy stories and major headlines.