Donald Trump criminal referral: What the US Justice Department could do

The House select committee laid out an ambitious road map for the prosecution of former United States president Donald Trump and several of his allies Monday, saying they had committed a number of federal crimes by undertaking overlapping plans to reverse the results of the 2020 election.

But it remains unclear just how closely the special counsel’s office in charge of the US Justice Department’s own investigation will follow the path mapped out by the committee — or whether Trump and others will face any criminal charges at all.

The panel’s recommendations that charges should be brought were based on an exhaustive investigation that spanned months and included interviews with key witnesses that even federal prosecutors may not have spoken to yet.

Charges warranted against Trump

In presenting the committee’s findings, Representative Jamie Raskin, D-Md, said he did not want the “foot soldiers” who stormed the Capitol on 6 January, 2021, to go to jail while “the masterminds and ringleaders get a free pass.”

Raskin explained that charges were warranted against Trump and others — chief among them the lawyer John Eastman, an architect of several plans to overturn Trump’s defeat. Nine months ago, Raskin noted, a federal judge in California, ruling in a civil case, concluded that there was evidence that Trump and Eastman had conspired together to commit federal crimes.

The department is under no obligation to adopt the committee’s conclusions or to follow its recommendations

As for the Justice Department’s efforts, not much is publicly known about any specific charges that the special counsel, Jack Smith, might be considering in a criminal prosecution. The department is under no obligation to adopt the committee’s conclusions or to follow its recommendations.

Still, there has been some overlap between criminal statutes cited by the department and the charges the committee recommended, according to search warrants and subpoenas that have gradually surfaced during the federal inquiry.

One charge that both the panel and prosecutors have placed at the centre of their work is obstruction of an official proceeding before Congress. The Justice Department mentioned that count in a warrant used in June to seize the cellphone of Jeffrey Clark, a former department official whom the committee referred for criminal charges on Monday.

Prosecutors have already used the obstruction count in nearly 300 criminal cases to describe how the mob that stormed the Capitol on 6 January disrupted the certification of the election that was taking place there during a joint session of Congress.

Still, the statute was never an easy fit for the violence that erupted at the Capitol.

It was passed into law as part of the 2002 Sarbanes-Oxley Act, which sought to curb corporate malfeasance by clamping down on things such as shredding documents and tampering with witnesses.

And defence lawyers have challenged its use in a federal appeals court in Washington, arguing that prosecutors stretched it beyond its original scope and used it to criminalise behaviour that closely resembles protest protected by the First Amendment.

Acting with a ‘corrupt purpose’

Still, the obstruction count could apply much better to Trump’s behaviour than to that of hundreds of ordinary rioters.

The law requires proving that any interference with a congressional proceeding be done “corruptly.” The committee said in its recommendations that Trump had clearly acted with a “‘corrupt’ purpose” because he was warned in advance that several of his schemes to maintain his grip on power were illegal.

The committee also recommended that Trump and others be charged with conspiracy to defraud the United States, a count that has been used in several Justice Department cases against both far-right extremists and ordinary rioters who appeared to have planned in advance to storm the Capitol.

Again, this conspiracy charge may in fact better describe the evidence against Trump, who, according to the committee, defrauded the public by making constant false claims that the election had been rigged against him.

Another charge the committee recommended against Trump and others was a conspiracy to make false statements. That count, according to the panel, was warranted because Trump took part in a wide-ranging scheme to send to Congress and the National Archives fake slates of electors declaring that he was the victor in several key states that were actually won by Joe Biden.

The insurrection charge

The most serious charge the panel has recommended against Trump is also likely to be the hardest to prove: insurrection. While the Justice Department has won a conviction on a related charge, seditious conspiracy, against Stewart Rhodes, the leader of the Oath Keepers militia, and is set to try five members of another far-right group, the Proud Boys, for sedition, it has not charged anyone with insurrection in more than 900 criminal cases.

Still, a federal judge in Washington laid the ground for a potential insurrection case against Trump in a ruling in February that permitted a series of 6 January related civil cases filed against the former president to move forward.

In his ruling, the judge, Amit P Mehta, said Trump was not merely exercising his First Amendment right to free speech when he called on the crowd listening to him on 6 January to march on the Capitol and “fight like hell.”

Mehta also found that there was a reasonable case to be made that Trump had aided and abetted those in the mob who assaulted police at the Capitol — in part, by waiting so long to call publicly for the rioters to calm down. One of the ways prosecutors could prove that Trump engaged in insurrection is by showing that he gave “aid and comfort” to other insurrectionists who took part in a rebellion against the government.

Alan Feuer, c.2022 The New York Times Company

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