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How The Select Committee Wrote A Prosecution Memo For Trump's Indictment

How The Select Committee Wrote A Prosecution Memo For Trump's Indictment

The House Select Committee investigating the January 2021 attack on the Capitol has referred former President Donald Trump and A handful of top aides to the Justice Department’s special counsel for criminal prosecution under four statutes related to impeding the transfer of power to Joe Biden after Trump lost the election.

The focused criminal referrals and short list of named possible defendants is a sign that the select committee is hoping to achieve accountability in federal court that was not forthcoming during Trump’s second impeachment – which was triggered by the insurrection -- according to former government lawyers.

“It’s important that the committee did not overcharge here,” said Norm Eisen, co-author of a Brookings Institution report on Trump’s post-election criminality. “The committee is disciplined in not naming a laundry list of individuals but pointing out that there are additional names that should be the subject of additional review by prosecutors that have powers that the committee did not [have] to get at the truth.”

After a final hearing Monday where committee members summarized a different aspect of their findings about Trump’s effort to seize a second term and unanimously voted to send the criminal referrals to the Justice Department, the committee issued an extensive executive summary that offered more details about the coup and the evidentiary basis for its criminal referrals.

“The committee’s report reads like a prosecution memo. It documents in meticulous detail the evidentiary basis for four separate crimes against Donald Trump and some key insiders,” said Barbara McQuade, former U.S. Attorney and professor at the University of Michigan Law School. “They take each of the four crimes, they break them down into their essential elements, and they list the evidence that applies to each and every one of those elements.”

The crimes range from straightforward actions to more complicated activities. On the simpler side of this ledger, the committee cited the statute making it a crime to obstruct a government proceeding – in this case, congressional ratification of 2020’s Electoral College vote. A second charge, conspiracy to defraud the United States, refers to two months of pressure campaigns aimed at state officials and federal agencies to reverse and publicly question the election results – such as Trump telling the Georgia Secretary of State to “find” votes, and a later effort to push the Justice Department to tell states that their certified election results were inaccurate or fraudulent.

A third charge, conspiracy to make a false statement, concerned one part of that state-centered pressure campaign, where, in seven states, 84 Republicans who were following orders from Trump and his lawyers, signed and submitted fake Electoral College certificates declaring that Trump was their state’s winner.

“There is some evidence suggesting that some signatories of the fake certificates believed that the certificates were contingent, to be used only in the event that President Trump prevailed in litigation challenging the election results in their States,” the executive summary said. “That may be relevant to the question whether those electors knowingly and willfully signed a false statement at the time they signed the certificates. But it is of no moment to President Trump’s conduct, as President Trump (including acting through co-conspirators such as [lawyers] John Eastman and Kenneth Chesebro) relied on the existence of those fake electors as a basis for asserting that the Vice President could reject or delay certification of the Biden electors.”

That paragraph was a rare instance of the executive summary naming Trump accomplices as co-conspirators, McQuade said, which suggests that they, like Trump, will almost certainly face prosecution if the special counsel pursues charges. Other named probable defendants include Trump’s lawyer Rudolph Giuliani, former White House Chief of Staff Mark Meadows, and former White House Deputy Chief of Staff Anthony Ornato.

The committee also referred four members of Congress to the House Ethics Committee for refusing to testify: Rep. Kevin McCarthy (R-CA), who is seeking to become the next Speaker of the House; Rep. Jim Jordan (R-OH), who is in line to become Judiciary Committee chair; Rep. Scott Perry (R-PA) and Rep. Andy Biggs (R-AZ).

The fourth charge against Trump and his top aides and allies was the most sweeping; to “’Incite,’ ‘Assist’ or ‘Aid and Comfort’ an Insurrection.”

This accusation encompasses Trump summoning supporters to come to Washington; urging them in a rally on the mall to march to the Capitol; targeting Vice President Mike Pence, who was presiding at the ratification; and then saying and doing nothing to stop the violence for nearly three hours that afternoon.

McQuade noted that the executive summary did not detail likely defenses to its recommended charges, such as Trump claiming that his speech on the mall before the riot was protected under the First Amendment. However, she said that the committee’s discussion of that charge noted Trump’s tweets during the riot inflamed the violence, which was not protected speech.

The report said:

“As explained throughout this Report and in this Committee’s hearings, President Trump was directly responsible for summoning what became a violent mob to Washington, DC, urging them to march to the Capitol, and then further provoking the already violent and lawless crowd with his 2:24 p.m. tweet about the Vice President. Even though President Trump had repeatedly been told that Vice President Pence had no legal authority to stop the certification of the election, he asserted in his speech on January 6 that if the Vice President “comes through for us” that he could deliver victory to Trump: “if Mike Pence does the right thing, we win the election.” This created a desperate and false expectation in President Trump’s mob that ended up putting the Vice President and his entourage and many others at the Capitol in physical danger. When President Trump tweeted at 2:24 p.m., he knew violence was underway. His tweet exacerbated that violence.”

The executive summary took a more cautious stance with seditious conspiracy charges, which involve coordinating with militias and fascist gangs like the Proud Boys before January 6. If Trump is charged and convicted on this count, the 14th Amendment would prohibit him from holding office, McQuade said, although that has “never been tested” in court.

It also said federal prosecutors should look at witness intimidation, and related issues -- such as how Trump used political donations to pay for lawyers and job offers to White House and campaign aides who had been subpoenaed to testify.

While the Justice Department’s Special Counsel Jack Smith will decide whether to bring charges, the select committee’s work is not symbolic. Never before has Congress referred a former president to the Justice Department for criminal prosecution. And the voluminous cache of evidence gathered by the committee has few modern precedents, apart from the Watergate hearings in the early 1970s.

The committee's inquiry over the past 18 months held nine televised hearings, issued 400 subpoenas, conducted 1,000 witness interviews, and has amassed more than one million pages of documents and other files. One reason that only Trump and his top co-conspirators were named in the committee report is that prosecutors will try to ask or pressure accomplices with lesser roles in these actions to become prosecution witnesses.

“The dangerous assault on American constitutional democracy that took place on January 6, 2021, consists of hundreds of individual criminal offenses. Most such crimes are already being prosecuted by the Department of Justice,” Rep. Jamie Raskin (D-MD) said. “Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a free pass.”

'Constitutional Patriot' Pence Is Central To Select Panel Probe

'Constitutional Patriot' Pence Is Central To Select Panel Probe

Former Vice President Mike Pence is not expected to appear when the House Select Committee holds its prime-time hearing — the first of its scheduled public hearings — on Thursday. Yet Pence’s key role in presiding over the counting of the Electoral College votes is expected to take center stage in the select committee’s presentation.

Pence didn’t cooperate directly with the select committee investigating the January 6, 2021, attack on the U.S. Capitol, but people close to the former vice president received invitations to appear for the public hearings.

The Washington Postreported that J. Micheal Luttig, a former federal judge who publicly rejected the notion that Pence had the authority to deny electoral votes, was invited by the select committee to testify at the public hearings. Pence aides Marc Short and Greg Jacob also received outreach from the select committee and are expected to testify.

Short, who served as Pence’s closest aides and vice presidential chief of staff, was with him the entire day on January 6, per CNN. He’s also a firsthand witness to the pressure campaign engineered by former President Trump and his top allies to get Pence to withhold certification of the 2020 election results.

New details have emerged in recent months about Pence’s actions on January 6, when he rebuffed overwhelming Republican pressure to reject electoral votes from states Joe Biden won while a pro-Trump mob breached the Capitol and threatened his life.

“I anticipate that we will hear about Mike Pence on Thursday night. You can’t tell the story without him," said Norm Eisen, a special counsel to Democrats during Trump’s first impeachment, who has co-authored a guide to the select committee hearings.

Eisen also noted that elucidating how Pence rejected the false suggestions proposed by top Trump allies would rebut GOP attempts to paint the committee and its findings as partisan.

“So, the other way that Pence comes in is as a dose of reality in response to these lunatic legal theories that were circulating. So that’s an important part of the narrative,” Eisen said.

To outline for viewers the GOP’s “coordinated, multi-step effort to overturn the results of the 2020 presidential election and prevent the transfer of power,” the select committee will stress the significance of Pence’s refusal to leave the Capitol after the rioters entered the building — a move that denied Trump supporters an opportunity to enact their plans.

"I think something that stood out to me is that there were certain people who were in the right place and did the right thing. They followed the law. They were courageous. They stood up to pressure, like the former vice president, for example," said Rep. Elaine Luria (D-VA), a member of the select committee. "It was a tragic event for our country, and there were villains that day, of course. But there were people who were heroic, who through their actions really prevented a much worse outcome."

Despite incurring widespread conservative wrath for refusing to overturn the 2020 presidential election in Trump’s favor, Pence has continued to insist he did the right thing. In February, the former vice president insisted that Trump had been wrong to suggest Pence could change the outcome of the 2020 election.

“Under the Constitution, I had no right to change the outcome of our election,” Pence said in a public statement.

Pence has distanced himself from the bipartisan House Select Committee, and his representatives have refused to confirm or deny whether the former president was invited to testify.

Flynn Reportedly Attended Intel Briefings While Paid By Foreign Interests

Flynn Reportedly Attended Intel Briefings While Paid By Foreign Interests

So much for Donald Trump’s promise to muzzle Washington lobbyists: He has offered the crucial position of White House national security adviser to Michael Flynn, a retired lieutenant general who is registered to lobby for a foreign company whose owner has close ties to the president of Turkey. And just last year, Flynn accepted payment from Russia’s state-owned television network to attend a celebration in Moscow. At that party he sat next to Russian president Vladimir Putin.

What makes Flynn’s lobbying role even more troubling, according to a new report by Yahoo News chief investigative correspondent Michael Isikoff, was his attendance at classified intelligence briefings with Trump last summer — while advising both the presidential candidate and his foreign clients.

President Obama’s former ethics adviser Norm Eisen, who also served as ambassador to the Czech Republic, told Yahoo News: “This is profoundly troubling and should be disqualifying,” and predicted that Flynn’s appointment as national security adviser will result in “wholesale resignations of national security professionals, and I believe some have already drafted their resignation letters.”

Ironically, Flynn’s reported appointment came on the same day that Trump announced he will require everyone involved with the transition to sever their relationships with lobbying clients and to forego any lobbying contracts for five years after their government service concludes. But the new policy — which removed many lobbyists from the Trump transition — does not apply to past clients.

Questions immediately arose over whether Flynn had signed a White House “memorandum of understanding” that required all transition team members to disclose their finances and certify that they had no conflicts of interest. To meet that requirement, the retired general — who formerly headed the Defense Intelligence Agency until he was forced to step down in 2014 — would have to reveal details about his company, the Flynn Intel Group, whose client list remains largely unknown. But the commercial aim of Flynn’s outfit is to provide “private business intelligence” to domestic and foreign corporations.

Information that might be gleaned from a classified White House intelligence briefing, like the sessions afforded to Trump and top figures in his campaign since last summer, would be invaluable to such clients. Through his attorney, Flynn issued a statement pledging that “if I return to government service, my relationship with my company will be severed, in accordance with the policy announced by President-elect Trump.”

As recently as last week, Flynn published an article in The Hill newspaper promoting the views of the increasingly repressive Turkish government headed by President Recep Tayip Erdogan. Specifically, he advocated the extradition to Turkey of Fethullan Gulen, an adversary of Erdogan who currently lives in the United States. Flynn denounced Gulen, blamed by the Turkish government for the recent coup attempt in Istanbul, as “a shady Islamic mullah” — and compared him to Osama bin Laden.

Yahoo News also quoted Danielle Brian, executive director of the Project on Government Oversight, who called Flynn’s presence at classified briefings when he was representing foreign clients “deeply disturbing.” Brian added, “It’s exactly the kind of foreign entanglements our laws are designed to prevent.”

Millions of Americans watched Flynn gleefully chanting “Lock her up!” along with delegates to the Republican National Convention in Cleveland last July, a taunting reference to Hillary Clinton for her alleged failure to protect classified information in her emails. “If I did a tenth of what she did,” he yelled, “I’d be in jail today!” Of course the FBI found that she had broken no laws — and reviews of thousands of her emails revealed that she had not knowingly disclosed any classified material or endangered national security.

Now the tables are turned — and perhaps the blustering general will have to explain why he sat in those highly classified briefings while he was still providing “private business intelligence” to foreign interests.