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It’s unclear whether the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol will officially say former President Donald Trump broke the law in regards to the attack or his efforts to call off election results. Even if they did, it is far from certain that Trump would be prosecuted for these crimes.
Congress has no power to prosecute; the best they can do is issue a criminal referral to the Department of Justice to prosecute. But that’s more of a recommendation than anything else. A criminal referral to Congress carries no legal weight, note The Posts Jacqueline Alemany and Devlin Barrett.
But it would still be symbolically significant if a committee made up of Democrats and two Republicans, after nearly a year of investigation, formally charged Trump with committing crimes. He would go down in the history books as having been impeached twice (and acquitted twice by the Senate) and charged with a felony or felonies by Congress. No American president has ever been charged with a crime related to his presidency.
Deciding if something is a crime is not black and white. There are different standards for different crimes and different parts of government use different standards. Congress issues criminal remands when it believes a crime may have been committed. Prosecutors, however, are only supposed to indict cases they believe can be successfully litigated to the standard of jury beyond a reasonable doubt.
Either way, these allegations of wrongdoing shape the committees’ investigation into the attack and how they present their findings to the American public.
So what could these crimes be? Here’s a look at what’s bubbling up in the committee’s investigation.
1. Obstruction of Congressional Due Process
It is illegal to obstruct an official procedure of Congress, and on January 6, 2021, Congress convened in what was largely an official procedure: to hear the state electoral vote count, certifying that Joe Biden had won the presidential election.
This is the crime many of the Jan. 6 attackers have been charged with, notes former federal prosecutor Barbara McQuade.
Some committee members, primarily Rep. Liz Cheney (R-Wyo.), raised questions about whether Trump violated that federal law by trying to block lawmakers from certifying Bidens’ victory. They aim to show that the attack on the Capitol was not a spontaneous explosion, but that Trump and his allies had specifically planned to disrupt the counting of Congress.
But to prove it, they have to prove their intention and it will be essential for them to demonstrate two things:
1. Trump knew he lost the election, but he still spouted lies about it. The committee spent the first two hearings playing video after video of Trump campaign aides and even former attorney general William P. Barr saying they knew Trump had lost the election and told him so. I made it clear that I didn’t agree with the idea of saying that the election was stolen and publishing this stuff, which I told the president was bullshit, a Barr said in recorded testimony earlier this year.
Former Attorney General William P. Barr told the Jan. 6 select committee that President Donald Trump made allegations of voter fraud before the evidence emerged. (Video: The Washington Post)
2. Why Trump made no effort to tell rioters to leave the Capitol for 187 minutes as the attack unfolded, even as some of his Republican allies pleaded with his chief of staff to get the president to talk. While doing nothing is not a crime, the president’s inaction during this time could be proof of his intent.
In March, a federal judge wrote that Trump and one of his attorneys, John Eastman, most likely committed the crime. (The case was not centered on Trump, but rather on what evidence the Jan. 6 committee might have.) Judge David O. Carter pointed to the committee’s findings that Trump had meetings prior to Jan. 6. explicitly to pressure Vice President Mike Pence to disrupt the joint session of Congress.
Because Trump likely knew his plan to disrupt the count was unwarranted, his mindset crosses the threshold to act corruptly, Carter wrote in his decision.
2. Conspiracy to defraud the United States
To prove this crime, it must be shown that at least two people entered into an agreement to interfere with a lawful function of government, by deceptive or dishonest means.
Here too, Carter stepped in to say there is strong circumstantial evidence that Trump committed this crime. He points to the fact that Trump and Eastman met with high-ranking officials to advance a plan to pressure Pence to reject the state election results on Jan. 6. (That would be an agreement to obstruct a lawful government function.)
And Eastman and Trump likely knew their plan was illegal because many high-level colleagues told them so, Carter claims.
During the first hearing on January 6, Cheney described Eastman as a crucial figure in the plot to overturn the election results. And she said Eastman didn’t believe the legal argument he was making potentially indicating intent to commit a crime. In fact, a month before the 2020 election, Eastman took the exact opposite view on the same legal issues, she said.
It is one of the most serious crimes the committee could charge Trump with. That would force the committee to tie Trump directly to the leaders of the mob that attacked the Capitol, McQuade said.
Leaders of the far-right Oath Keepers and Proud Boys militias have been charged with the crime. The seditious conspiracy is a rare and serious accusation, alleging that they attempted by force to reverse the peaceful transfer of presidential power. A handful of assailants have pleaded guilty.
The committee should show that Trump was part of a deal that someone would physically attack the Capitol to prevent his opponent’s electoral certification, McQuade said.
The committee spent quite a bit of time during its first prime-time hearing explaining how they believe Trump influenced these militia groups, who seemed to latch onto his every tweet, and how these groups seemed to be planning to advance to attack the Capitol by arriving there before Trump even delivered his inflammatory speech earlier in the day.
This is a potential crime the committee discussed during its Monday hearing: that Trump may have committed fraud by raising funds on the false basis that the election was stolen. As The Posts Aaron Blake reports:
In a video released at the end of the hearing, committee investigator Amanda Wick detailed Trump’s fundraising practices. She said he raised $250 million after the election, while lobbying for donors to support what is called his official election defense fund.
But she revealed that Trump aides Hanna Allred and Gary Coby said there was technically no fund. She also noted that most of the money went to Trumps Save America PAC and very little was used to challenge the election results.
Wire fraud, McQuade said, occurs when someone provokes a wire transmission to advance a fraud scheme. If Trump solicited funds for one purpose and knowingly used the funds for another, he could be guilty of wire fraud, she said.
The question the committee must answer here is similar to the question it must answer for all of these crimes: Did Trump believe what he said? He may have gone through the stages of a crime, but if he honestly believed the money was being used to fight his election legal battles, that could be legal protection in itself.
One of the weird things about all of this, said Berkley law professor Orin Kerr, “is that Trump was doing things that any normal person would have realized were illegal or realized there was no had no evidence. So how do you rate the psychology of Donald J. Trump in terms of what he was thinking?
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