Four criminal referrals for Trump; Jan. 6 probe releases executive summary of final report

WASHINGTON, DC - DECEMBER 19: An image of a noose outside the US Capitol is is displayed on a screen during a meeting of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol in the Canon House Office Building on Capitol Hill on December 19, 2022 in Washington, DC. The committee is expected to approve its final report and vote on referring charges to the Justice Department of insurrection, obstruction of an official proceeding of Congress and conspiracy to defraud the United States against former President Donald Trump. (Photo by Al Drago/Getty Images)


In addition to the insurrection referral, the committee said it amassed sufficient evidence indicating Trump criminally obstructed the joint session of Congress on Jan. 6, 2021; conspired to make false statements when trying to pass off fake electoral certificates as genuine to the National Archives; and conspired to defraud the United States.

John Eastman, the uber-conservative attorney who penned a six-point scheme to overturn the election results, was also criminally referred to the Justice Department on Monday. Eastman, the committee said, very likely committed obstruction of an official proceeding and conspiracy to defraud the United States.

Along with the referrals, which have been anticipated for months, the committee too issued the “introductory material” of its final report.

The 154-page document published on Monday is just a small chunk of what is expected to be a staggeringly comprehensive report totaling nearly 1,000 pages. That final report is due out Wednesday. Committee chairman Bennie Thompson said it would include transcripts from witness depositions. 

Introductory Material for Final Report of Select Jan 6 Committee by Daily Kos on Scribd

Though not referred to the Justice Department, the select committee advanced referrals to the House Ethics Committee for four House Republicans, including Minority Leader Kevin McCarthy and Reps. Scott Perry, Jim Jordan, and Andy Biggs. All violated congressional ethics rules when they dodged subpoenas and other requests for their testimony or records from the Jan. 6 probe, the select committee’s chair said Monday. 

It will be up to that congressional body to decide what actions to take moving ahead. Currently, the House Ethics committee is evenly split between Democrats and Republicans and there are already several hurdles baked into the process that must be overcome before action can be taken against a sitting lawmaker.

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Thread: About the Jan 6 cmte referrals to House Ethics for Kevin McCarthy, Andy Biggs, Jim Jordan and Scott Perry. @DavidLaufmanLaw, once the investigative counsel to the House Ethics Cmte, explained to me last October how referrals to that body work. https://t.co/GmW4rH8JRT

— Brandi Buchman (@Brandi_Buchman) December 19, 2022

Though Rep. Mo Brooks of Alabama was subpoenaed by the select committee, too, he has escaped a referral to the ethics panel since he won’t be a sitting member of Congress next year. 

The referrals

The referrals made Monday should not come as a shock to the American public. Over the spring and summer, the committee repeatedly indicated that criminal referrals might very well be part of its ultimate trajectory. Much reporting was devoted to the committee’s internal debate on this front, too. 

A criminal referral from Congres to the Justice Department has no legal weight. It cannot force action. It is a suggestion. It is, as committee member Rep. Jamie Raskin said Monday, a “road map” for the Justice Department to consider along with all of the other information and evidence it has collected. 

Though the referrals are symbolic, this course of action was necessary, Raskin said Monday, because the evidence was too compelling. 

Ours is not a system of justice where foot soldiers go to jail and masterminds and ringleaders get a free pass,” he said. 

It will be left to the Justice Department to decide whether a “free pass” is issued. The Justice Department has been investigating the events of Jan. 6 for several months already. Special Counsel Jack Smith was appointed to lead a criminal probe of Trump’s handling of classified documents as well as the insurrection, and it is worth noting that grand jury witnesses tied to events of the Capitol assault have been scurrying in and out of the federal courthouse in Washington, D.C., for months. 

The committee has pointed to earlier court rulings in their favor to support their criminal referrals too. Those rulings include one from U.S. District Judge David Carter in California, which found Trump and Eastman more likely than not engaged in a criminal conspiracy to overturn the election results. And in February, the committee was on the receiving end of a helpful ruling from U.S. District Judge Amit Mehta. Mehta found Trump couldn’t throw off lawsuits accusing him of conspiracy tied to Jan. 6. Trump’s language on Jan. 6 likely incited violence and especially violence from extremist groups, Mehta found.

“It is reasonable to infer that the President knew that these were militia groups and that they were prepared to partake in violence for him. The same is true of other supporters. The President and his advisors allegedly ‘actively monitored’ websites where supporters made violent posts, and such posts were discussed on Fox News, a media outlet regularly viewed by the President. He also would have known about violent threats made against state election officials, which he had refused to condemn. The President thus plausibly would have known that a call for violence would be carried out by militia groups and other supporters,” Mehta wrote. 

There were others the committee weighed for possible referral, Rep. Raskin said Monday. But the referrals made were “based on the gravity of the offense, the centrality of the actors and the evidence available.” 

Eastman tried to evade the committee’s subpoena but was hugely unsuccessful, ending up in a protracted court battle over his records. 

“The evidence shows that Eastman knew in advance of the 2020 election that Vice President Pence could not refuse to count electoral votes on January 6,” a summary of the final report released on Monday states. 

Eastman put together a six-step plan for Pence to overturn the election, outlining how votes could be tossed in battleground states and replaced with pro-Trump electors. Eastman urged Pence to act unilaterally in the memo and deemed him the “ultimate arbiter.” This could not have been farther from the constitutional truth, but Eastman urged “competing electors” for Trump to be considered at certification. In reality, these “competing electors” were not official electors at all. They were just allies to Trump who aligned Trump’s Big Lie. Notably, Greg Jacob, an aide to former Vice President Mike Pence, told the committee that Eastman knew his plan was not just crazy but illegal, since it violated the terms of the Electoral Count Act. 

Despite a raft of warnings, Eastman advanced the plan anyway and even spoke at Trump’s rally at the Ellipse. An attorney for Eastman could not immediately be reached by Daily Kos on Monday.

The decision to issue other criminal referrals, like obstruction of an official proceeding of the U.S. government and conspiracy to defraud the U.S., was reached for obvious reasons. 

Rep. Raskin said that “the whole purpose” of Trump’s conduct was to obstruct the session of congress on Jan. 6. “More than sufficient evidence” also exists on the conspiracy to defraud the U.S. front. 

The Maryland Democrat said Trump’s false statement referral was based on the existing evidence around the fake elector scheme. 

“An insurrection is a rebellion against the authority of the United States. It is a grave offense anchored in the Constitution itself,” Raskin said. 

Trump had a duty to make sure U.S. laws were faithfully executed, Raskin said, and the insurrection Trump incited was his greatest betrayal of that duty. 

In its executive summary, the committee notes that it stopped short of referring Trump for seditious conspiracy or conspiracy to impede officers. The Justice Department may have “investigative tools” that exceed the committee’s power, the report states. 

The Committee believes that former Chief of Staff, Mark Meadows (who refused to testify and was held in contempt of Congress) could have specific evidence relevant to such charges, as may witnesses who invoked their Fifth Amendment rights against self-incrimination before this Committee,” Monday’s summary notes.

The executive summary 

The select committee conducted its investigation of Jan. 6 for 18 grueling months with hundreds of interviews conducted. In its “introductory material”  summary alone, the committee highlights interviews with an array of nearly 100 Trump White House and administration officials. From former acting attorney general Jeffrey Rosen to Roger Stone to Rudy Giuliani and Mark Meadows. From positions high up to positions low, the committee pursued depositions without prejudice.

The summary also cites information and records gathered from a diverse number of sources. From Chapman University—where John Eastman once worked—to the Department of Justice to AT&T, the physical records turned over to the probe were rich in details that helped investigators piece the larger picture together.

And a fact that may surprise detractors of the probe: The majority of witnesses who cooperated with the investigation were Republicans. 

The executive summary is not complete, and at this point, there is no mention of other high-level figures who heavily promoted Trump’s Big Lie. For example, ‘Stop the Steal’ founder Ali Alexander isn’t mentioned in the summary; nor is Ginni Thomas, the conspiracy-theory-espousing wife of conservative Supreme Court Justice Clarence Thomas. Their names—and others—may appear in the final version of the report published later this week. 

Overall, the summary re-establishes what was made public over the course of its hearings this summer: Trump knew he lost the 2020 election, but despite this knowledge and a bevy of warnings from trusted advisors, the former president advanced his bogus claims of voter fraud anyway. 

Trump pressured Pence to intervene during the joint session, the committee contends, and tried to capture the Justice Department as the days to Jan. 6 wound down. Trump also targeted state officials and election officials. He oversaw a plan to submit fake electoral slates to the National Archives and leaned on members of Congress to support those fake slates. He intentionally “verified false information filed in federal court” when advancing his lies about voter fraud and when he could go no further, he summoned a mob to halt the certification. 

Trump knew violence was happening on Jan. 6, too, the summary notes, and despite that, issued tweets condemning Pence for his refusal to intervene in the joint session anyway. His messages on Twitter motivated rioters and spurred surges against law enforcement. 

In that vein, the committee notes too that law enforcement, as well as members of the intelligence community, had “successfully detect[ed] the planning for potential violence on Jan. 6” and shared that with officials in the White House.

What went undetected, according to the committee, was the full range of plans Trump and attorneys like Eastman and Rudy Giuliani had in place to overturn the election results. 

Trump’s decision to provoke the crowd when he took the stage was not foreseen by intelligence officials, either.

Importantly, the summary points out that while Trump had the authority and responsibility to deploy the National Guard during the violence, he never did. The committee found no evidence that the Pentagon delayed the Guard from entering the Capitol on Jan. 6. 

Former President Donald Trump’s incitement of the insurrection at the Capitol began long before he took the stage at the Ellipse on Jan. 6.

 He had refused to commit to a peaceful transfer of power in September 2020 and routinely amplified messaging from the “Stop the Steal” movement as it gathered steam and his own legal attempts to overturn the election results in court faltered.

Leaders of the movement, including the far-right conspiracy theorist Ali Alexander, aligned with Trump allies like Roger Stone, Alex Jones, and disgraced former national security adviser Michael Flynn, among others, to promote Trump’s “Big Lie” in public and private spaces, witness testimony has shown.

Extremist groups like the Oath Keepers and Proud Boys joined the call, too, holding massive rallies in D.C. before Trump would finally urge his supporters to descend on Washington for a “wild” day.

Trump wrote on Twitter on Dec. 19, 2020—two years ago today—that it had been “statistically impossible” for him to have lost the election. But it wasn’t. Trump secured only 232 electoral college votes in 2020. Now-President Joe Biden secured 306. This was the same margin Trump described as a “landslide” victory when he defeated his opponent in 2016, Hillary Clinton. Popularly, Trump secured just over 74 million votes in 2020, while Biden secured just over 81 million.

Federal prosecutors have pointed to Trump’s Dec. 19 tweet as a major catalyst for the violence of Jan. 6 and Oath Keeper leader Kelly Meggs of Florida, who was found guilty this month of seditious conspiracy and attempting to forcibly stop the nation’s transfer of power, told members of the group upon reading it, “He wants us to make it wild. He called us all to the Capitol and wants us to make it wild. Sir, yes sir!” 

Before then, William Barr, the attorney general that Trump himself appointed, told Trump no less than three times that after extensive investigation and hundreds of interviews, no widespread voter fraud was found. The acting deputy attorney general at the time, Richard Donoghue, went through claims of fraud with Trump piecemeal and explained how he found zero evidence to support the claims of pervasive fraud.

Justice Department investigators looked at Georgia, Pennsylvania, Nevada, Michigan, and other battleground states. They investigated wild claims, many supported by Trump’s lawyers and lackeys, that Italian satellites were being used to manipulate voting machines and flip votes from Trump to Biden.

But time after time, when hard proof to support the fantasy that Trump and his cronies peddled so religiously failed to materialize, Donoghue and his superior, then-acting attorney general Jeffrey Rosen, told Trump explicitly: The information he received about rigged voting machines, ballot harvesting, and rampant fraud were false.

Trump’s campaign manager and data expert told him no election fraud existed, too. 

His campaign lawyer Alex Cannon told him the same.

Trump’s chief of staff Mark Meadows even once remarked to Cannon, Cannon told the committee this year, “So, there’s no there there?” when Cannon informed him no evidence of election fraud existed. 

Yet none of that, according to the Jan. 6 committee’s extensive findings, deterred Trump from playing out the final doomed act of his presidency.

When Trump took the stage at the Ellipse on Jan. 6, he delivered more than an hour of remarks rich in baseless allegations of fraud and enmity toward Pence. Trump called on Pence to “come through for us” but that “us” did not include the 81 million Americans who voted against him. 

RELATED STORY: For third hearing, Jan. 6 probe homes in on Pence pressure strategy and Trump’s bunk elector scheme

When Pence published an open letter stating he would not and could not intervene in the certification, it was a tipping point for many who had already been worked into a lather by Trump. Calls to hang Pence surged through the crowd. A gallows was erected on the Capitol lawn.

Pence would eventually be forced into hiding at a secure location, coming less than 40 feet from the mob as he, his family, and his aides were whisked to safety. It was the quick thinking of U.S. Capitol Police Officer Eugene Goodman to redirect the crowd that gave Pence his escape.

Hundreds of police officers were brutally assaulted and there were at least five deaths on Jan. 6 after Trump urged his supporters to “march” to the Capitol. Speaking to his intent, multiple witnesses told the committee that Trump wanted to be at the Capitol with his supporters but was held back at the last minute by his security detail. 

The crowd wouldn’t hurt him personally, Trump told Secret Service agent Tony Ornato. 

Former White House aide Cassidy Hutchinson told the select committee under oath that Trump had been informed that morning before taking the stage that many in the crowd were heavily armed. He didn’t care, she said, and he called for magnetometers to be removed so more people could fill out empty space—weapons or not. 

According to the committee’s executive summary, “several sources” told them of Trump’s “furious interaction” in the motorcade when he lunged at his driver once told he could not be taken to the Capitol:

“The vast majority of witnesses who have testified before the Select Committee about this topic, including multiple members of the Secret Service, a member of the Metropolitan police, and national security officials in the White House, described President Trump’s behavior as “irate,” “furious,” “insistent,” “profane” and “heated.” [Cassidy] Hutchinson heard about the exchange second-hand and related what she heard in our June 28, 2022, hearing from [Tony] Ornato (as did another witness, a White House employee with national security responsibilities, who shared that Ornato also recounted to him President Trump’s ‘irate’ behavior in the Presidential vehicle.) Other members of the White House staff and Secret Service also heard about the exchange after the fact.”

In comprehensive testimony by administration staff, White House lawyers, and even Trump family members, the select committee learned how Trump utterly abandoned his duty to uphold the Constitution once mayhem exploded at the Capitol.

For over three hours, “overwhelming evidence” shows Trump sat back and watched the violence unfold on a television from a dining room just near the Oval Office. He found time to call U.S. Senators to ask them to delay the count but he did not make a statement urging calm until after 4 p.m. 

And though the committee was never able to locate any official records of phone calls from the White House originating from 1:19 p.m. to 4:03 p.m. on Jan. 6, his personal assistant told the panel the former president placed “lots of calls” that afternoon.

Cell phone records obtained by the committee showed Trump called his lawyer and lead architect of his fake elector scheme, Rudy Giuliani, his press secretary Kayleigh McEnany and a number of sitting U.S. senators, including Mike Lee, a Utah Republican. When Lee answered, he learned Trump was actually looking for Senator Tommy Tuberville of Alabama.  Tuberville and Trump spoke for 10 minutes.

The executive summary details how Trump ignored requests from White House attorney Pat Cipollone to issue a statement to quell the violence and highlights testimony from a White House staffer with national security beat who said he heard White House attorney Eric Herschmann and Cipollone, discuss Trump’s inaction. The aide said he heard Herschmann tell Cipollone that Trump “does not want to do anything to halt the violence” and “the president doesn’t want anything done.” 

Members of the Trump White House press shop, including deputy press secretary Judd Deere and Sarah Matthews, told the committee it would have taken Trump just a minute to craft a statement to calm the mob. Cipollone agreed.

It was only after Trump’s daughter and adviser, Ivanka Trump, approached her father that Trump sent out a message calling for some version of peace. 

“Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” Trump wrote. 

Witnesses, including former press secretary Kayleigh McEnany, testified that Trump was resistant to including the “peaceful” part of his message. Trump sent out another tweet and, this time, asked “for everyone at the U.S. Capitol to remain peaceful,” but he did not instruct them to leave.

Donald Trump Jr., the former president’s son, messaged White House chief of staff Mark Meadows after this, urging Trump to “condemn this shit.” 

“The capitol police tweet is not enough,” Trump Jr. told Meadows. 

After multiple calls for backup from congressional leaders like Speaker of the House Nancy Pelosi and Senate Majority Leader Chuck Schumer and state and local officials, the National Guard finally arrived. Trump issued a video message, but it had come only after significant bloodshed and death. The next day, video footage secured by the committee, showed Trump struggling to condemn what had unfolded.

The report sheds additional light on the closeness and frequency of interactions among Trump’s lapdog at the Justice Department, Jeffrey Clark, and John Eastman, too. Clark pleaded the Fifth to most of the questions posed to him by investigators. 

And in a new bit of information unveiled by the committee on Monday night, the committee revealed a text between campaign aide Hogan Gidley and White House aide Hope Hicks sent on Jan. 6 at 2:19 p.m. Gidley wrote to Hicks, “Hey, I know you’re seeing this. But he really should tweet something about being NON-VIOLENT.” [Emphasis original]. 

Hicks replied, “I’m not there. I suggested it several times Monday [Jan 4] and Tuesday [Jan 5] and he refused.”

The text exchange is critical because it would appear to confirm that Trump had awareness of potential violence before Jan. 6.

Daily Kos will continue to parse out details of the report this week and will have coverage of the full report once it is live. 



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