Jan. 6 committee crosses key threshold; allegations of Trump criminal conspiracy a signal to Justice Department
- The House committee investigating the Jan. 6 insurrection is looking at Trump's role on that day.
- In court documents, the panel indicates it has gathered the makings of a criminal case.
- Those new filings are putting pressure on Justice to investigate whether a crime was committed.
WASHINGTON – A special House committee, in an extraordinary legal filing alleging a possible criminal conspiracy involving Donald Trump, not only put the former president on notice that its investigation had crossed a potentially dangerous threshold.
The court documents filed Wednesday also sent an unequivocal message to the Justice Department that the congressional panel investigating the deadly Jan. 6 attack has gathered the makings of a criminal case.
The House panel is not a criminal investigative body, but its leaders have signaled that they would turn over to the Justice Department whatever evidence they found of potential crimes.
Nine months after beginning its work, the committee revealed its most striking finding yet as it worked to force disclosure of communications involving Trump legal adviser John Eastman, who wrote a plan to challenge the results of the 2020 election.
"The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power," panel Chairman Bennie Thompson, D-Miss., said in a joint statement with Rep. Liz Cheney, R-Wyo., the panel's co-chair.
The committee's legal arguments, however, contained even more pointed language:
"The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States," the documents state, referring to Trump's repeated false assertions of election fraud and a pressure campaign waged against then-Vice President Mike Pence to invalidate the 2020 election.
The Justice Department and Attorney General Merrick Garland have declined to comment on whether its sprawling investigation into the Capitol attack includes an examination of Trump's role in possibly inciting the insurrection by continuing to assert that the election was fraudulent.
On Thursday, the White House and Illinois Rep. Adam Kinzinger, one of the two Republican members of the Jan. 6 committee, appeared to place the matter squarely in the Justice Department's court.
"In terms of anything beyond (the committee's filing), for a criminal perspective, that's up to DOJ. It's not up to us," Kinzinger said.
Asked about the committee's filing, White House press secretary Jen Psaki told reporters Thursday that any decision to prosecute would be up to the Justice Department, not President Joe Biden.
"The former President subverted the Constitution in an attempt to overturn a lawful and fair election. His actions represent a unique and existential threat to our democracy, and the president has been clear that these events warrant a full investigation," she said. "We, of course, respect the independence of the Department of Justice."
Former Attorney General William Barr, on a media tour to promote a new book, told NBC News that he briefed Trump on the errors in his voting fraud claims and told him he should not be discussing them publicly.
"I told him that all this stuff was bulls--- about election fraud," Barr said. "And, you know, it was wrong to be shoveling it out the way his team was,"
Legal analysts suggested that it was only a matter of time before the committee made a formal referral of its findings to the Justice Department.
Harry Litman, a former federal prosecutor, said it was more than likely that the committee, having amassed thousands of documents and interviews with hundreds of witnesses, would share its evidence with federal prosecutors.
"I'd say it's probably 90% that this lands with a referral to Justice," Litman said. "The question is: what will they do with it?
"It just may be that the department already has this same evidence," he said.
Among the materials cited in the committee's report is a Jan. 6, 2021, email exchange between Eastman and former Pence legal counsel Gregory Jacob.
"Did you advise the president that in your professional judgment the Vice President DOES NOT have the power to decide things unilaterally," Jacob wrote in a late-afternoon message. "Because that was pushed publicly, repeatedly, by the president and his surrogates this week. And without apparent correction."
Eastman responded within minutes.
"He's been so advised, as you know because you were on the phone when I did it," Eastman wrote.
"I should not discuss other conversations that I may or may not have had privately on that score with someone who is a client. But you know him–once he gets something in his head it is hard to get him to change."
The emails not only offer a historical record and potential evidence but also a window into the committee's access to key players at the time, including aides to the former vice president, a prime target of Trump's pressure campaign to invalidate the election.
Jacob, who provided extensive testimony before the committee earlier this year, was described by Chairman Thompson as a "great patriot."
Daniel Goldman, the Democratic lead counsel for the first Trump impeachment and a former federal prosecutor, said the court filing is extremely significant – and not just because of all of the detail it lays out about potential crimes.
By putting all of the information in an official court filing, the committee is essentially already making a criminal referral to the Justice Department without doing so in the way that would prompt a political backlash, he said.
“I think what they did in this filing was a very smart way of making it clear that the committee believes there's significant evidence of criminal conduct by Donald Trump that warrants investigation – that Donald Trump committed crimes,” Goldman told USA TODAY. “And it laid out in some detail what that evidence is in a court document, which is a more serious document (than a news release) where lawyers are making representations to a judge that must be true and accurate.”
Goldman described it as as "a backdoor referral, which makes it clear that the committee believes that a criminal investigation is warranted but doesn't specifically ask the Department of Justice to do one."
The court filing is also significant, Goldman said, because it ratchets up the pressure on the Justice Department to investigate Eastman as a key player in what happened on, and before Jan. 6.
“Whether he's trying to obstruct or hide incriminating materials, we just don't know,” Goldman said. ”But generally speaking, for someone like Eastman – who did not have a longstanding attorney-client relationship with Donald Trump, who was brought in expressly for the purpose of trying to overturn the election, you can bet that the documents that he's trying to hold back are very relevant to what the committee is investigating, and perhaps what DOJ should be investigating.”
Trump denied wrongdoing Thursday, saying he was only challenging what he called "a rigged election."
He again accused the committee of playing politics.
"The Unselect Committee’s sole goal is to try to prevent President Trump, who is leading by large margins in every poll, from running again for president, if I so choose," Trump said in a long written statement detailing his complaints about the 2020 election.
Eastman's attorney, Charles Burnham, maintained that his client has "a responsibility to protect client confidences, even at great personal risk and expense."
"The Select Committee has responded to Dr. Eastman's efforts to discharge this responsibility by accusing him of criminal activity," Burnham said in a statement. "Because this is a civil matter, Dr. Eastman will not have the benefit of the Constitutional protections normally afforded to those accused by their government of criminal conduct. Nonetheless, we look forward to responding in due course."
At its core, the committee's filing puts tremendous pressure on the Justice Department to investigate, and to provide some form of public accounting of whether it too believes crime were committed and by whom, said Matthew Dallek, a political and presidential historian and professor at George Washington University in Washington, D.C.
“It's a big deal when you have a congressional committee saying that a former president of the United States broke the law or potentially multiple laws,”Dallek said. “It can't just be dismissed as a partisan attempt to get Trump. The question it begs, of course, is: Who in the criminal justice system is going to investigate and bring charges?”
Dallek said the court filing highlights the dilemma facing the Justice Department over whether it prosecutes a former president and possible presidential candidate in 2024.
“For the Justice Department, the risks of not prosecuting Trump far outweigh the risks of prosecuting him," Dallek said. "Because if the country is truly committed to the idea of ‘no one above the law,’ it's hard to see how Trump does not get indicted on any one of these many alleged wrongdoings.”