What it would mean for the Jan. 6 committee to make criminal referrals

December 20, 2022

ABC News

(WASHINGTON) — When the House select committee investigating the Jan. 6 Capitol attack holds its final meeting Monday, the expected headline is whether it will make criminal referrals to the Justice Department or other outside entities — especially concerning former President Donald Trump.

The committee has been considering criminal referrals for multiple individuals who participated in efforts to attempt to overturn the 2020 election, including former White House chief of staff Mark Meadows, former White House attorney John Eastman, former Justice Department official Jeffrey Clark and Trump’s former personal attorney Rudy Giuliani, according to sources familiar with their discussions.

The panel’s nine members had debated for months the merits of sending one or several criminal referrals to Attorney General Merrick Garland and the Justice Department, along with referrals to other government agencies and even to bar associations.

A referral is not required to investigate Trump and his allies, nor does one guarantee it, but public hearings outlining Trump’s “seven-point plan” to overturn the 2020 presidential election have amped up pressure on Garland to bring criminal charges against Trump — the first in history against a former president. The Justice Department has already been conducting its own separate investigation into Jan. 6, which has included multiple former senior Trump White House staffers along with his close allies appearing before grand juries.

While referrals from the Jan. 6 committee might, on paper, end up being a largely symbolic gesture, experts told ABC News earlier this year that the move deserves careful consideration.

“I don’t think that there is any member of that committee who has any doubt about whether Donald Trump violated the law or questions the actual merits of a criminal referral,” said Claire Finkelstein, director of the Center for Ethics and Rule of Law at the University of Pennsylvania Law School. “What I suspect is that it has much more to do with trying to preserve Congress’ authority and not wanting division between those who are trying to hold Donald Trump accountable in Congress and the Justice Department.”

“But,” she added, “the calculation that says, ‘We will hold back, and therefore preserve our own authority,’ is mistaken.”

Pros and cons

With concerns that Republicans will paint any criminal referral, and any subsequent Department of Justice charges, as politically motivated, the committee could decide to leave its findings in a public report, which would then serve as an indirect “handoff” to the Justice Department, said Ryan Goodman, a professor at New York University School of Law, who outlined some reasons that might give the committee pause.

“The downside with a referral could be that if Garland’s Justice Department does move ahead, that it would be perceived as potentially political by some parts of the American public,” he said. “It could be better for the Justice Department to appear more independent than seeming as though it’s responding to a direct referral coming out of the committee.”

On the other hand, Goodman said, while congressional referrals can’t compel action, “I think Garland has shown us time and again that he is reactive, not proactive — and what he reacts to are other institutions, forcing the question.”

After Trump announced last month that he is running for president a third time, Garland appointed Jack Smith as special counsel to oversee the department’s criminal investigation into the alleged unlawful retention of documents at Trump’s Mar-a-Lago estate, as well as key aspects of its probe into the events of Jan 6.

Trump, for his part, has called the Jan. 6 congressional committee “illegitimate” and their presentation a one-sided “smoke and mirrors show.” A criminal referral for Trump — and a potential indictment while he’s running for president — could have polarizing implications for the American public.

But Finkelstein, the ethics expert, said, “What’s at stake is the very structure of our democracy and our ability to hold public officials to the confines of the law.”

Ahead of the committee potentially sending formal criminal referrals, here’s a look at federal statutes the committee and experts say Trump and his allies may have violated:

Obstruction of an official proceeding – 18 U.S.C. § 1512

Over nine public hearings, the committee outlined an alleged “sophisticated seven-point plan” it says Trump and his allies engaged in with the goal of stopping the peaceful transfer of power, including “corruptly” planning to replace federal and state officials with those who would support his fake election claims and pressuring Pence to violate his oath to uphold the Constitution.

Acting on a plan with the intent to stop the counting of electoral votes would likely violate 18 U.S.C. § 1512, which makes it a felony to attempt to “corruptly obstruct, influence, or impede any official proceeding,” such as the certification of a presidential election, and comes with up to 20 years in prison.

“If there is enough evidence to prove that Trump knew he had lost the election, then it’s obvious that he was acting with corrupt intent,” Goodman said. “You can’t try to pressure the vice president to overturn the election if you know you actually lost.”

Committee Vice Chair Rep. Liz Cheney, raising texts sent to Meadows urging Trump to call for violence to stop on Jan. 6, has mirrored language in the statute to raise the question, “Did Donald Trump, through action — or inaction — corruptly seek to instruct or impede Congress’ proceedings to count electoral votes?”

The committee has attempted to make the case that even without a “smoking gun” such as Trump admitting on tape he knew the election was lost, a preponderance of evidence should have made that clear to him, and members will lead their case next to the potential legal culpability of Trump’s direct — and indirect pressure — on the Justice Department and state election officials.

Of the more than 900 individuals charged so far in the Justice Department’s criminal investigation of the Jan. 6 riot, more than 300 have been charged with obstruction of an official proceeding. Prosecutors have typically deployed the charge in cases where an alleged rioters’ conduct crosses beyond just unlawfully entering the Capitol during the riot and they can tie their words or motivations to interfering with the counting of the electoral college vote.

Conspiracy to defraud the United States – 18 U.S.C. § 371

This statute, also raised by Cheney over several hearings, criminalizes the agreement between two or more persons to “impair, obstruct or defeat the lawful government functions” and is punishable by up to five years in prison.

As part of the “seven-point plot” laid out, the committee argues Trump’s legal team violated this federal criminal statute when instructing Republicans in battleground states to replace Biden electors with slates of Trump electors and send those votes to Congress and the National Archives. (The Justice Department’s special counsel is also already separately investigating the alleged fake electors’ plot.)

While Trump’s intent to defraud would need to be proved for a conviction, experts interviewed by ABC News said, how Trump relates to other potential defendants would be considered when weighing potential criminal charges to bring, and they noted some of his closest allies appear to “have very significant criminal exposure.”

Eastman, the former Trump election attorney, drafted a plan for Trump to cling to power by falsely claiming Pence could reject legitimate electors. Meadows, allegedly with Trump’s son-in-law Jared Kushner, told then-Attorney General Bill Barr that Trump was “becoming more realistic” that he lost as they were “working on it.”

“If those individuals know Trump lost and indicated it, it’s going to be easier to prove the case against them,” Goodman said.

And if those close to Trump are charged, it may be easier to prove he agreed to participate in the conspiracy.

“For example,” Finkelstein said, “if John Eastman is found guilty of conspiracy to defraud the United States or obstruction of an official proceeding and Donald Trump was found to be in a conspiracy with John Eastman, the exact nature of his intent may not have to be the same as if he is a principal defendant because, under federal conspiracy law, he only needs to have agreed to the object to the conspiracy.”

Seditious conspiracy – 18 U.S.C. § 2384

Seditious conspiracy is defined as when two or more people in the U.S. conspire to “overthrow, put down, or to destroy by force” the U.S. government, or to oppose by force or try to prevent the execution of any law. It comes with 20 years in prison upon conviction.

Since use of force is an element of this crime, and Trump was not on the Capitol grounds during the attack, experts cautioned that the burden of proof might be more difficult in that regard.

“It must mean that Trump acted with foreknowledge and intend to use force and violence, and I think that’s going to be very hard to prove, though there is a lot of evidence that points in that direction,” Goodman said.

Members have tried to make the case that Trump was told some of the individuals that came to hear him speak were armed but that he didn’t care because, as Meadows aide Cassidy Hutchinson testified she recalled him saying, “‘They’re not here to hurt me.'”

The committee has argued that hundreds of Proud Boys and other militia groups traveled to Washington specifically for an insurrection, indicated by members marching on the Capitol before Trump even began speaking.

The Justice Department already secured major victories late this year with seditious conspiracy convictions of two far-right extremist group leaders: Oath Keepers founder Stewart Rhodes and Kelly Meggs, a leader of the militia group’s Florida chapter. After a separate indictment this year charging five members of the extremist far-right group the Proud Boys with seditious conspiracy, one member, Jeremy Bertino, pleaded guilty to seditious conspiracy in federal court in October — the first member to do so. The others have pleaded not guilty.

If the committee accuses Trump of conspiring with Proud Boys or other far-right extremist groups who are accused of organizing the Capitol attack, there’s more potential for a seditious conspiracy charge, which could then trigger Section 3 of the 14th Amendment, which prohibits those who had “engaged in insurrection or rebellion against the same [United States], or given aid or comfort to the enemies thereof” from serving in government.

Fraud by wire, radio or television – 18 U.S.C. § 1343

The committee also introduced evidence of Trump and his allies fundraising $250 million off fraudulent election claims, asking for money for an “Official Election Defense Fraud” fund — but the panel said no such fund existed — with Rep. Zoe Lofgren, D-Calif., casting the “big lie” as “a big rip-off.”

“Claims that the election was stolen were so successful, President Trump and his allies raised $250 million, nearly $100 million in the first week after the election,” said Amanda Wick, senior investigative counsel to the committee, in a taped video. “Most of the money raised went to this newly created PAC, not to election-related litigation.”

The allegation has raised questions over potential wire fraud charges, or the attempt to defraud another through physical or electronic mail.

However, experts told ABC News this charge might be more difficult to prove, going back to the question of Trump’s intent. Prosecutors would have to convince a grand jury that Trump intended to mislead.

“He can say, ‘I wasn’t in charge of setting up those fundraising efforts, I didn’t know that they were potentially illegal,'” Wehle said. “So that’s a thornier case.”

To charge or not to charge

The experts ABC spoke with agreed the Jan. 6 committee has made a compelling case so far, and that the onus is on Garland and the Justice Department to follow the roadmap it’s laid out.

They argue the rule of law is at risk.

“The committee’s public hearings have raised the stakes enormously for the country, in the sense that the criminal activity shown to have gone on is so brazen, that if the Justice Department does not enforce the law in this case, it really does further erode the rule of law and democracy,” Goodman said.

“Even if the effort fails, at least there’s a message sent that there is a cop on the block,” Wehle added. “Because we’re headed for a very, very dark era of American history if something doesn’t happen.”

ABC News’ Benjamin Siegel contributed to this report.