An image of former President Donald Trump is shown during a full committee hearing on the Jan 6th investigation on Capitol Hill on July 12, 2022, in Washington, D.C.
Calling Donald Trump the “central cause of January 6th,” the committee investigating the attack on the U.S. Capitol criminally referred the former president to the Department of Justice to investigate him on inciting an insurrection and multiple other felonies.
Two of them are the charges that a federal judge previously found Trump “more likely than not” committed: obstruction of an official proceeding and conspiring to defraud the United States.
The committee also accuses Trump of having “incited, assisted or aided and comforted those engaged” in the Jan. 6th insurrection.
“In the Committee’s hearings, we presented evidence of what ultimately became a multi-part plan to overturn the 2020 Presidential election,” the 161-page introduction to its final report states. “That evidence has led to an overriding and straight-forward conclusion: the central cause of January 6th was one man, former President Donald Trump, who many others followed. None of the events of January 6th would have happened without him.”
The committee also issued a criminal referral for Trump’s attorney John Eastman. In addition, the panel plans to ask the House Ethics Committee to consider referrals of top Republican lawmakers like House Minority Leader Kevin McCarthy of California and Representatives Jim Jordan of Ohio, Scott Perry of California, and Andy Biggs of Arizona.
When Republicans will reclaim control of the House of Representatives on Jan. 3, 2023, they are expected to shut down the committee.
“The Extraordinary Step”
The committee also asked the Justice Department to look into whether Trump committed seditious conspiracy, the same charge that led to the convictions of Oath Keepers leader Stewart Rhodes and other members of his extremist group. The other conspiracy counts include scheming to make false statements and conspiracy to impede or injure an officer of the U.S.
Those two additional statutes, however, were not among the four referrals voted on and approved by the committee on Monday.
“Criminal referrals from a Congressional committee are often made in circumstances where prosecutors are not yet known to be pursuing some of the same facts and evidence,” the introduction noted. “That is not the case here. During the course of our investigation, both the U.S. Department of Justice and at least one local prosecutor’s office (Fulton County, Georgia) have been actively conducting criminal investigations concurrently with this Congressional investigation.”
The recommendations were reportedly made by a four-member subcommittee, led by Rep. Jamie Raskin (D-Md.) and also including Reps. Liz Cheney (R-Wyo.), Adam Schiff (D-Calif.) and Zoe Lofgren (D-Calif.).
Criminal referrals by U.S. lawmakers carry no legal weight and were the subject of intensive debate inside the committee.
According to Politico, some committee members feared the referrals would not make any prosecution more likely and could arm Trump and his supporters with a reason to attack any potential case as politically motivated. The committee reportedly overcame those reservations earlier this month, and the report indicates the members hope the Justice Department will “utilize investigative tools” at the agency’s disposal to pick up where lawmakers left off.
“In fact, the U.S. Department of Justice has recently taken the extraordinary step of appointing a Special Counsel to investigate the former President’s conduct,” the committee noted.
Special counsel Jack Smith will ultimately decide whether or not to prosecute Trump with crimes related to his handling of classified information or his alleged role inciting the Jan. 6th attack on the U.S. Capitol.
From that perch, the Committee says, the special counsel may be able to overcome stonewalling from Trump allies.
“To assist the public in understanding the nature and importance of this material, this Report also contains sections identifying how the Committee has evaluated the credibility of its witnesses and suggests that the Department of Justice further examine possible efforts to obstruct our investigation,” the introduction states. “We also note that more than 30 witnesses invoked their Fifth Amendment privilege against self-incrimination, others invoked Executive Privilege or categorically refused to appear (including Steve Bannon, who has since been convicted of contempt of Congress).”
“The Illegality of the Plan Was Obvious”
Well before Attorney General Merrick Garland appointed Smith as special counsel, a federal judge in California found that Trump “likely” committed two felonies. That ruling was not a criminal referral and came in the context of a civil case filed by the former president’s lawyer John Eastman, who was seeking to keep his emails from the committee.
Overruling Eastman’s claims of attorney-client privilege, U.S. District Judge David O. Carter made watershed findings of the crime-fraud exception — citing the same two criminal offenses that the committee decided to include in their referral.
“The illegality of the plan was obvious,” Carter wrote in a 44-page order earlier this year in March. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no Vice President in American history has ever asserted such authority.’ Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed. With a plan this ‘BOLD,’ President Trump knowingly tried to subvert this fundamental principle.”
Carter followed up that blistering ruling with another one that found Trump lied about his voter fraud claims, “both in court and to the public.” The ruling found that the 45th president also put his signature on federal court documents with false voter fraud numbers, even after his attorneys informed Trump they were wrong.
Echoing that finding, the committee wrote: “Donald Trump purposely verified false information filed in Federal court.”
Carter’s name appears no fewer than 28 times in the report’s introduction, which begins with a 17-point list evoking a wide-ranging scheme by Trump to remain in office.
“Each of these actions by Donald Trump was taken in support of a multi-part conspiracy to overturn the lawful results of the 2020 Presidential election,” one of those points states.
That conspiracy included what the report brands the “Big Lie” of election fraud. Then, Trump “corruptly pressured Vice President Mike Pence to refuse to count electoral votes during Congress’s joint session on January 6th,” sought to corrupt the Justice Department to “make purposefully false statements,” and “unlawfully pressured State officials and legislators” to change election results in their states, the introduction states.
Read the full introduction to the report here.