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Over the Cliff Notes: The Criminal Referrals

The J6 Select Committee has made criminal referrals to the DOJ for Trump and others. What happens next? NOBODY goes deep and lays it all out like Teri Kanefield!
Published:December 23, 2022

*Permission to reprint from her brilliant blog was generously granted by Teri Kanefield.

About the title: During Trump’s first impeachment, I was offering summaries and commentaries of the legal documents. I asked my readers what I should call them. My favorite suggestion was “Over the Cliff Notes.”

On Monday, the House Select Committee on the January 6 Attack released the Introductory Material to the Final Report. The bulk of the 154-page document summarized the evidence presented during the televised hearings. As we all know, Trump was at the center of a complex, multi-pronged plot to overturn the election, which included sending fake electors to Congress to give Pence an excuse to refuse to count the electoral votes and sending a violent mob to Congress to interfere with the counting of electoral votes to prevent Biden from being named the winner of the election.

If you missed the hearings (and most were not aired during primetime) here is an 11-minute recap of the evidence. Notice that the witnesses are mostly Republicans and Trump insiders:

The most interesting new information concerned the detail that lawyers paid by groups connected to Trump were advising witnesses to provide false or misleading testimony:

The Committee has substantial concerns regarding potential efforts to obstruct its investigation, including by certain counsel (some paid by groups connected to the former President) who may have advised clients to provide false or misleading testimony to the Committee. Such actions could violate 18 U.S.C. §§ 1505, 1512. The Committee is aware that both the U.S. Department of Justice and the Fulton County District Attorney’s Office have already obtained information relevant to these matters, including from the Committee directly. We urge the Department of Justice to examine the facts to discern whether prosecution is warranted.

It wasn’t hard to guess that one of the witnesses who was instructed to give misleading testimony was Cassidy Hutchinson, the former aide to Mark Meadows. To recap what we knew:

In February, Cassidy Hutchinson received a subpoena from the Select Committee. She was twenty-six years old, unemployed, and had no money. Her aunt and uncle had offered to refinance their house to raise the money she needed for a lawyer, but their application to refinance was not approved. When she wrote to Trump people, she was “primarily seeking financial assistance.”

Trump world provided a lawyer for her, a die-hard MAGA person. While working with this lawyer, she was not forthcoming with the committee. Then, she switched lawyers to one connected with Jeff Sessions. With her new lawyer (and having bonded with Liz Cheney in the process) she found new courage and was able to offer the riveting testimony we saw on television.

Now we know why she wasn’t forthcoming until she switched lawyers. Then on Tuesday, CNN reported that the lawyer in question was Stefan Passantino, the top ethics attorney in the Trump White House. (Um. . . top ethics lawyer for the Trump White House? Irony died again.)

Passantino was paid by Trump’s Save America Political Action Committee, and Passantino failed to tell Hutchinson who was paying for her legal services. One of my readers on Mastodon said:

“The only thing that amazes me about all this is that anyone is stupid enough to get involved in this kind of behavior.”

Real-life criminals are generally not like the ones in movies and spy thrillers. They’re not masterminds able to pull off complicated plots. Often they just do stupid things for stupid reasons. (Yours truly, a former defense lawyer.)

(Speaking of Mastodon: You can find me on Mastodon by typing this into the search bar:

As was widely anticipated, the Committee referred Trump and others to the DOJ for criminal prosecution.

But Teri, Does Any Of This Really Matter?

The referrals are just that: Referrals. The DOJ is not obligated to act on them. Moreover, as should be clear to everyone by now, a robust criminal investigation is well underway at the DOJ. Some respected legal analysts have thus argued that criminal referrals would be a mistake because any prosecutions that follow could appear political.

At this point, I’m not worried about that. It’s clear that the DOJ has been operating independently. Moreover, a Congressional committee has a different task and works under different conditions. The task of the DOJ is to make charging decisions and prosecute crimes. Preparing for a trial is nothing like assembling evidence for a televised presentation. In a trial, all the evidence has to meet the standards in the federal rules of evidence. The defense will make objections, which makes the presentation tedious and cumbersome.

Preparing a televised presentation is entirely different and has a different purpose: To educate the public and to consider legislative and other measures to reduce the likelihood of another such attack, and to report its findings to the people.

Getting the truth out there always matters.

Criminal Referrals for Obstruction of an Official Proceeding (18 U.S.C. §1512(c))

§1512(c) makes it a crime to corruptly obstruct, influence, or impede any official proceeding or attempt to do so. To get a conviction (and when deciding whether to bring charges), prosecutors look to see if there is evidence beyond a reasonable doubt to support each element of a crime. Here are the elements of 1512(c):

  1. Whoever corruptly
  2. obstructs, influences, or impedes
  3. any official proceeding or attempts to do so . . .

The first two elements, (1) and (2) are easy. Trump knew his actions were likely to obstruct or influence the counting of the votes in Congress, and he knew he wasn’t supposed to be interfering with Congress.

(3), “an official proceeding” seems straightforward but is a bit tricker. The Introductory Material to the Report says:

“The question is whether the counting of electoral votes is an official proceeding under the statute. Many Federal judges have already reached that specific conclusion.”

Yes, many federal judges have found that the vote in Congress was an “official proceeding,” within the meaning of §1512, but one court didn’t, and the issue is on appeal. To recap: The defense argument on appeal is that the law was enacted in 2002 after Enron’s accounting firm, Arthur Andersen, launched what prosecutors called a “wholesale destruction” of documents. Later, they defended the shredding of documents on the grounds that under the law as it then stood, destroying evidence was illegal only if an official proceeding was pending. The statute was intended to close that loophole. So defense lawyers argued that “obstructing an official proceeding” doesn’t apply to something like the counting of votes in Congress. The defense is likely to lose, but we don’t know for sure, so meanwhile, (3) isn’t quite as straightforward as it looks.

The Committee also thinks John Eastman should be charged under this statute and implies that Jeffrey Clark should as well.

Criminal Referrals for Conspiracy to Defraud the United States (18 U.S.C. § 371)

As a general rule, criminal conspiracy statutes allow prosecutors a wide net. To see what I mean, let’s start with the elements of the federal conspiracy:

  1. Two or more persons conspire (agree),
  2. either to commit any offense against the US, or to defraud the US, or any agency thereof in any manner or for any purpose,
  3. and one or more of such persons do any act to effect the object of the conspiracy.

To get a conviction for conspiracy, the crime doesn’t have to be committed. All you need is for one of the conspirators to take an affirmative step toward carrying out the conspiracy. While all parties need to have knowledge of the conspiracy, they don’t all have to know what all the others are actually doing.

See why it allows prosecutors a wide net?

The third element is what prevents people from being prosecuted for a thought or an idea. Without the third element, you could convict a few people for having fun planning the perfect crime that none of them intend to commit. Put another way, every crime has a mental component (mens rea, as everyone knows who saw Legally Blonde) and a conduct component (actus reas). The conduct part is to make sure we don’t prosecute people for thoughts or ideas. The mental component is to make sure we don’t criminalize accidents. For example, if you accidentally step on someone’s toe (and it was genuinely an accident), you can’t be convicted for assault or battery.

(Maybe I should have called this blog post: Everything you never knew you wanted to know about criminal law.)

Even though § 371 requires that the crime is against the US, we don’t have to worry about the “official proceedings” stuff as with § 1512 because courts have held that §371 is broad enough to include “obstructing the lawful function of any department . . .”

According to the Introductory Material to the Report, the conspiracy under § 371 appears to have also included Chesebro, Rudolph Giuliani, and Mark Meadows, but the Committee doesn’t try to determine all of the participants of the conspiracy.

This is a pattern throughout Introductory Material. The committee often stops in its analysis and refers the matter to the DOJ to complete the evidence gathering and decide who should be prosecuted. The reason seems to be that the DOJ has superior evidence-gathering capacities and can get evidence that remained beyond the reach of Congress. It could also be that, as reported, Liz Cheney wanted the focus to remain on Trump.

Criminal Referrals for §1001 (false statements)

This one is actually 2-for-1: §1001 (false statements) and §371 (conspiracy to make false statements).

“Conspiracy to make false statements” widens the net because you don’t just get the people who made the false statements. You also get people who conspired to make the false statements. (Looking at you, Stefan Passantino.)

Again, we start with the elements. In deciding whether the person made a false statement, we ask these questions:

  1. Was the act or statement material?
  2. Was the act within the jurisdiction of a department or agency of the United States?
  3. Was the act done knowingly and willfully?”

If each of the above is yes (and there is evidence to prove each element beyond a reasonable doubt) we have a violation of §1001.

The committee sees the false elector scheme as falling under §1001. The question is: Who committed this crime? According to the committee, Trump is a definite yes. There are others as well, but the committee leaves the analysis to the DOJ.

Criminal Referrals for § 2383 (incitement)

The statute stays: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto. . . ”

What makes this one hard is the elevated standard for prosecuting a person for speech. The standard comes from a Supreme Court case called Brandenburg v. Ohio. Clarence Brandenburg a Ku Klux Klan leader, is the guy in the sheet. He’s standing with his friend, Richard Hanna.

Brandenburg was arrested and charged after addressing a small crowd in Ohio. He bemoaned the fate of the “White Caucasian race” and alluded to the possibility of what he called “revengeance” in the event that the federal government and courts continued to “suppress the white, Caucasian race.”

The Supreme Court held that his speech was protected because it was not “directed at inciting or producing imminent lawless action” and was not “likely to incite or produce such action.”

Essentially the Brandenburg test makes it impossible to throw a politician in jail for saying things like, “We have to fight like hell to stop this nonsense.”

You’re probably thinking, “Of course, Trump and friends incited imminent lawlessness. They riled the rally-goers and directed them to the Capital building just as the election was about to be certified.” True. But Trump will raise a First Amendment defense. How do I know?
Because that was his defense at his second impeachment because Rudy Giuliani raised that defense against one of the lawsuits against him and because lots of the insurrectionists also raised that defense.

Trump will point to the fact that in the speech at the Ellipse on January 6, he said this:
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

During the rioting, Trump tweeted, “Mike Pence didn’t have the courage to do what should have been done,” which we know was inflammatory and intended to rile the insurrectionists even more against Pence. But he also tweeted, “Stay peaceful.”

Did he mean “stay peaceful”? Of course not. But he said it. I have no doubt that in the tradition of mob bosses, he tweeted “Stay peaceful” to give himself deniability later, but if you put the two Tweets side by side, you can see he has a defense. The committee gives a nod to the First Amendment defense for the speech:

A Federal court has already concluded that President Trump’s statements during his Ellipse speech were “plausibly words of incitement not protected by the First Amendment.”

“Plausibly words of incitement” obviously isn’t the standard of proof needed for a criminal conviction.

The DOJ can probably get around the defense by pointing to Trump’s inaction after the violence began to prove that he intended to incite violence. What will help Trump is that many of the Oath Keepers and others who planned and carried out the attack were not even at his speech. They skipped his speech altogether, went directly to the Capitol, and waited for the rally-goers to arrive. Then they incited the rallygoers (many of whom reported that they felt swept along with the crowd.)

Because the DOJ will need to bring in Trump’s actions to show that the speech was intended to incite, the easier way to prosecute Trump would be to show his speech at the Ellipse as part of a larger and more complex conspiracy to overthrow the results of the election.

The Big One: 18 U.S. Code § 2384 (Seditious Conspiracy)

As I’ve mentioned before, Seditious Conspiracy is a big deal because this statute is the closest we have to a charge of treason in a case like this one. The Constitution tells us that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It is settled law that “War” must be a war declared by Congress. Why? Because the drafters wanted it hard to prove treason.
Here are the elements of seditious conspiracy:

  1. Two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States,
  2. conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States,
  3. or by force to seize, take, or possess any property of the United States contrary to the authority thereof,

Force is a key element, which is what makes this such a serious crime. Here’s what the committee says about seditious conspiracy:

“Depending on evidence developed by the Department of Justice, the President’s actions with the knowledge of the risk of violence could also constitute a violation of 18 U.S.C.§ 2384.”

The committee points out that the DOJ recently secured seditious conspiracy convictions for members of the Oath Keepers, which means the government has established that a conspiracy exists. What remains is to connect Trump to the conspiracy (which to me seems easier than showing that his speech and tweets incited the violence). The committee goes on to say:

The Department of Justice, through its investigative tools that exceed those of this Committee, may have evidence sufficient to prosecute President Trump under Sections 2384. Accordingly, we believe sufficient evidence exists for a criminal referral of President Trump under these two statutes.

The committee says the same about 18 U.S. Code § 372 (Conspiracy to impede or injure officer), another serious crime. They say it may be that the DOJ, with its superior investigative tools, will secure the necessary evidence, therefore, the committee refers Trump for this statute as well.

Some Shady Phone Calls

The committee was aware that witnesses often received phone calls like this one:
 [A person] let me know you have your deposition tomorrow. He wants me to let you know he’s thinking about you. He knows you’re a team player, you’re loyal, and you’re going do the right thing when you go in for your deposition.

I suspect the “person” is Trump. If so, it’s a mystery to me why the name was redacted. Maybe we’ll find out from the full report.

The committee is also aware of multiple efforts by President Trump himself to contact Select Committee witnesses. The committee, however, didn’t perform the analysis of whether Trump should be prosecuted for witness tampering and left that to the DOJ (possibly because they were unable to secure the evidence necessary to charge this as a crime.)

Four Members of Congress

The Introductory material ends by listing the members of Congress who had information but were unwilling to provide it to the committee: Kevin McCarthy, Jim Jordan, Scott Perry, and Andy Briggs. The Committee thus referred them to the House Ethics Committee. Finally, the committee lists the witnesses who were forthcoming (including William Barr) and those who were evasive and may have withheld information (this list included Ivanka Trump and Kayleigh McEnany.)

The full report is here if anyone wants some light holiday reading 

A Few Thoughts on Jeffrey Clark’s First “Deposition”

Wednesday night, the Select Committee released new material which included a number of depositions.

I started with Jeffrey Clark’s first “deposition,” and here’s evidently what happened: At the last minute before his appearance, his new lawyer offered a letter explaining why he was refusing to answer questions. The reason they gave: Trump had written a letter (which wasn’t included), and as per the letter, Clark understood that he wasn’t supposed to answer any questions because Trump was claiming executive privilege. Clark also invoked other privileges as well, none of which applied.

But here’s the thing: Trump never took the appropriate step of filing his claim of executive privilege in court.

Reading the “deposition” (which was actually a meeting because Clark wouldn’t answer any questions), it’s easy to see what was going on.

Trump evidently knew if he filed an objection in court, the court would rule against him and order Clark to testify because there is no way the questions the committee wanted to ask were seeking privileged information.

Instead, Clark came in with a letter, which he thought would give him cover.
Clark also refused to produce documents and phone records. The questioner seemed to have evidence that Clark had been conducting government business on a personal electronic device during the period leading up to the insurrection, but Clark refused to say a word. In his next deposition, he continually stood on the Fifth. It got silly:
Q: On January 6, 2021, were you the Assistant Attorney General for the Environment and Natural Resources Division?’

A: Fifth

That all happened in November 2021. Clark must have thought he was pretty clever to avoid testifying to Congress or handing over records.

Then, on June 22, 2022, FBI agents searched his home. Presumably, they got his electronic devices and records.

Then, to make things worse for Clark, on July 28 we learned that former DOJ staffer Ken Klukowski, who worked with Jeffrey Clark, was cooperating in the DOJ Jan 6 investigation, including allowing a search of his electronic records.

It would not be fun to be Jeffrey Clark right now.

I glanced through the other depositions, and others stonewalled the committee by invoking the Fifth Amendment, even when asked questions that could have nothing to do with criminal liability, like this:

Q: How old are you?
Roger Stone: The Fifth.

Now, on the other hand, JJ never needs to take the Fifth because he never does anything wrong. For example, if he figures out how to get up on the table and eat people food, it is not his fault. It’s the people’s fault for leaving food in his reach. Besides, he has a defense. He spends so many hours on his green chair successfully guarding the house, he deserves extra rewards. In the time he has been on duty, no mail carrier or pigeon has ever made it past the front door.