When the House select committee began its 10-month investigation into the January 6 insurrection, lawmakers set out to uncover and present evidence from the first disruption of the peaceful transfer of power in American history.
Now, with the committee half-way through its hearings for June, another goal is coming into sharper focus: To painstakingly show why they believe former President Donald Trump violated several federal laws in the events leading up to the insurrection and its aftermath; a federal judge ruled in March that Trump “likely” committed a felony.
The committee explicitly stated that it has evidence to show that then-President Trump and his campaign staff carried out an “illegal” and “unconstitutional” attempt to obstruct Congress’ election certifying Joe Biden’s victory and “engaged in a criminal conspiracy to defraud the United States.”
“President Trump’s advisors knew what he was saying was false, and they told him so directly and repeatedly,” Committee Vice-Chair Liz Cheney said during a video released by the committee on Wednesday before the third hearing.
The committee does not have the authority to prosecute the former president. But it can make criminal referrals to the Justice Department, and it appears to be laying out a methodical case that could mar Trump’s political standing and inform a future criminal case against him.
Five legal experts told Insider how the Justice Department could build their case to issue charges against Trump, but noted the former president may have a strong legal defense.
Lawmakers on the House January 6 committee will air the inquiry’s findings during a public hearing Thursday.
Kent Nishimura / Los Angeles Times via Getty Images
‘Conspiracy to defraud the government’
The House select committee stated in a March 2 court filing that it has evidence that Trump and his campaign team violated one federal law by engaging in “a criminal conspiracy to defraud the United States.”
If the Justice Department, likely via the US attorney in Washington, DC, were to charge Trump with breaking this law, federal prosecutors would have to prove beyond a reasonable doubt that the former president knowingly agreed with others to attempt to obstruct Congress’s election certification process by deceit or dishonesty, said John Q. Barrett, a former associate independent counsel in the Iran-contra investigation.
“The challenge for prosecutors, of course, is to prove each element of the crime. And one element of these various charges is the criminal intent, the mental state, and the culpable mind of the defendant,” said Barrett, a law professor at St. John’s University in New York City.
If federal prosecutors were to get evidence that Trump privately acknowledged to a confidant or in a written statement that he lost the election fairly, it would strengthen a case.
Legal experts told Insider that the Justice Department’s biggest challenge in prosecuting Trump would be dispelling the notion that he honestly believed that election fraud occurred during the 2020 presidential election, claims that officials and aides are testifying they’d told Trump were baseless and “bullshit.” If the prosecutors cannot prove that there was an “intent to defraud” beyond a reasonable doubt then their case will not hold up.
The committee has tried to illustrate that Trump broke this law by playing video testimonies of former Trump advisers who told the president not to prematurely declare victory, as he did, and that there was no evidence of election fraud. The committee has not revealed any evidence that Trump may not have believed the conspiracies he was pushing.
Even without that evidence, a case could rely on the concept of “willful blindness,” which can be used against a defendant who tries to avoid or ignore facts that may implicate them. This approach has been suggested by former US attorney Barbara McQuade.
Vice President Mike Pence certifying the results of the 2020 presidential election.
Scott J. Applewhite/AP
‘Obstructing an official proceeding’
The House select committee also argued that Trump violated another law by allegedly trying to “obstruct, influence, or impede an official proceeding of the United States.”
Prosecutors could make a case that he broke this law by pressuring his then-Vice President Mike Pence to stop Congress’s election certification process or for telling his followers the election was “criminal” and to march on the Capitol where the certification was about to start. Prosecutors can also use evidence of how Trump tried to pressure Georgia election officials to overturn the election results to claim that he broke this law and another Georgia state law by engaging in “criminal solicitation to commit election fraud.”
This is the strongest legal argument they can make against Trump compared to the other charges because they have amassed a lot of evidence, Renato Mariotti, a former federal prosecutor, told Insider.
“The committee has presented a lot of evidence that Donald Trump was told that there was no election fraud, and that he lost fair and square, but he chose to reject that,” he said. “And it’s well established that the January 6 vote count was an official proceeding.”
Federal prosecutors have charged many rioters with violating this law, making it likely Trump would face this charge should he eventually be indicted, the legal experts told Insider.
Since the January 6 insurrection, federal authorities have apprehended more than 800 individuals in connection to the attack on the Capitol. Of them, more than 280 have been charged with “corruptly obstructing, influencing, or impeding an official proceeding” as of June 8, according to the Justice Department.
Lawmakers listen as an image of a Trump campaign donation banner is shown behind them during a House January 6 committee hearing.
During a hearing held on June 13, the House select committee revealed that Trump’s campaign raised more than $250 million from his support base and claimed that he would use the money to create a legal fund to challenge the 2020 presidential election result. The committee revealed that the fund never was made, and money was directed toward a new political action committee called “Save America.” The PAC then sent the money Trump’s campaign raised to several pro-Trump organizations.
Democratic Rep. Zoe Lofgren of California, a member of the panel, said during the third hearing that “the Big Lie was also a big rip-off.”
Some legal experts have hinted this evidence could be used to make a case that Trump committed the crime of wire fraud by participating in a scheme to defraud individuals of money. Under federal law, wire fraud is committed when an individual has devised or intends to devise a plan to defraud or obtain money through false or fraudulent pretenses and carries out the scheme by a telephone call or electronic communication.
The Justice Department has not traditionally prosecuted campaign solicitations as wire fraud in the past, said Mariotti.
“The issue I would say is, it’s going to be hard to find victims to come forward,” Mariotti said, “because the people that have donated the money felt so strongly about Trump that they’re not going to necessarily support the government prosecuting Trump.”
Stephen Saltzburg, a former deputy attorney general with the Justice Department and an associate independent counsel during the Iran-Contra investigation, said it could be hard for prosecutors to make a case on these grounds.
“I don’t think we have enough information about it,” Saltzburg, a law professor at George Washington University, said.
Salzburg added that Trump’s defense attorneys could argue that these advertisement and campaign fundraising emails did not explicitly promise his supporters that they would set up a separate account to legally challenge the 2020 elections.
One attorney close to Trump told Insider that at most these emails could be evidence that leads to a campaign finance violation, rather than a federal charge.
“There’s a lot of other things in this world to worry about. That’s not one of them,” Robert Ray, a former prosecutor who defended Trump in his first Senate impeachment trial, said in an interview.
Under campaign finance laws, the Federal Election Commission, a regulatory agency that enforces campaign finance law, limits how much an individual can donate to a political campaign. But there are no limitations on donations that go to legal defense funds because it falls outside of typical campaign finance.
Insider previously reported that it is unlikely for the former president to be charged with fraud even if his campaign sent misleading emails to its donors. Legal experts told Insider that there are still a lot of details that remain unknown about the Trump campaign’s fundraising for the legal defense fund.
“You need to prove to the jury that somebody authorized solicitations that said the money was going to be spent on election contests knowing that was false,” Adav Noti, vice president and legal director at the Campaign Legal Center who previously served as the Federal Election Commission’s associate general counsel for policy, recently told Insider in an interview. “You need to find the individuals, it wouldn’t be enough for criminal purposes to say, ‘Here’s what happened.'”
Former White House aide Cassidy Hutchinson.
Brandon Bell/Getty Images
On June 28, the House panel offered new evidence that unnamed associates of Trump may have engaged in witness tampering in an attempt to withhold truthful information that may be damaging or incriminating.
The committee withheld the names of the witnesses and callers. Republican Rep. Liz Cheney, vice-chair on the committee, presented two messages that witnesses received before their testimony.
Cheney read a description of a witness who recalled phone calls they received: “What they said to me is, as long as I continue to be a team player, they know that I’m on the team, I’m doing the right thing, I’m protecting who I need to protect, you know, I’ll continue to stay in good graces in Trump World.”
—January 6th Committee (@January6thCmte) June 28, 2022
Cheney said a second witness also received a phone call before they were expected to testify. The caller told them: “[A person] let me know you have your deposition tomorrow. He wants me to let you know that he’s thinking about you. He knows you’re loyal, and you’re going to do the right thing when you go in for your deposition.”
Cheney’s remarks on Tuesday came after the public testimony of former White House aide Cassidy Hutchinson, who delivered damning testimony against Trump, including that the then-president had dismissed concerns that some of the protesters on Jan. 6 may be armed. Past witnesses include several prominent Republican state officials, election workers, and former Justice Department officials.
If prosecutors were to charge Trump or his associates with witness tampering, they would have to prove that they attempted to threaten or intimidate a witness to “influence, delay, or prevent the testimony of any person in an official proceeding.”
This is very hard to prove because you need to establish the intent of why someone would do this, said Daniel Richman, a former federal prosecutor in the US Attorney’s Office for the Southern District of New York.
Richman, who has tried witness tampering cases in the past, said prosecutors would need to gather evidence of who made these calls, their timing, and look at the circumstantial evidence of why they’d made them.
What’s more, Trump could not be charged with this crime without evidence he knew the call would be made and what the conversation would be about.
Former President Donald Trump speaks on May 28, 2022 in Casper, Wyoming.
Chet Strange/Getty Images
Trump’s possible defense
Mariotti told Insider that Trump could claim he is not guilty of attempting to obstruct or impede a US official proceeding and was just following the advice of his legal adviser John Eastman, who repeatedly pushed Pence to reject electors from some states Trump had lost to throw the election.
“It’s hard to convince a jury that somebody who was following the lawyer’s advice was acting corruptly,” he said.
Some legal experts have hinted that Trump could possibly plead not guilty by reason of insanity in order to avoid being prosecuted if he is charged. Former Attorney General William Barr testified to the committee that Trump had become “detached from reality,” referring to Trump’s belief that there was voter fraud despite his advisers telling him there wasn’t. But other legal experts caution this would be extremely unlikely.
“I don’t think it’s very likely that assuming an indictment and a trial that Donald Trump would defend himself as insane or mentally deranged and thus not criminally culpable,” Barrett said. “I think Trump would largely defend himself the way he has conducted himself. He would say I won. It was a steal. You know, bad things happen to prevent my inauguration.”
The House select committee has interviewed more than a 1,000 people, including members of Trump’s family like his daughter Ivanka Trump and son-in-law Jared Kushner. It also has issued several subpoenas and reviewed thousands of documents related to the January 6 insurrection. Legal experts told Insider that these public hearings could put more pressure on the Justice Department to decide whether to indict Trump.
Earlier this week, Attorney General Merrick Garland told reporters that he and the federal prosecutors working on the January 6 investigation were watching the congressional public hearings.
Shannon Wu, a former federal prosecutor in Washington DC, told Insider that there are most likely concerns within the Justice Department that possibly charging the former president could exacerbate America’s deepening political tensions.
“I think he’s really worried that such an explosive, unprecedented case might open the DOJ to charges of being political,” Wu said.
But Wu added that not charging the former president could have far worse consequences.
“If you don’t try to hold Trump accountable,” Wu added, “then you’re really endangering the whole foundation of the country and the justice system.”
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