The January 6 Committee Lays Out A Conspiracy

Will DOJ take them up on it?

We’ve been discussing, with good reason, the mounting legal problems the former president faces. It’s not just DOJ’s Big Lie/Insurrection investigation, it’s Mar-a-Lago, and it’s the possibility of contempt if Trump fails to comply with a Congressional subpoena. His company goes to trial this coming week, he faces a February trial in the E. Jean Carroll defamation case, the New York AG is after him civilly, the Fulton County, Georgia district attorney is investigating him criminally. There are so many that I’ve probably left out a few.

But in many of these investigations, it’s not just Trump who’s on the minds of prosecutors, and certainly not when it comes to the January 6 committee. If the (possibly) final hearing made anything clear, it’s that the committee has a conspiracy’s worth of targets in sight. That shouldn’t come as much of a surprise with Obama-era U.S. Attorney Tim Heaphy in place as Chief Investigation Counsel for the Committee. And Heaphy onboarded a staff flush with former prosecutors.

Prosecutors think conspiracy any time they see two or more people involved in a potential crime. Committee members seem to be thinking conspiracy too. In previous hearings, Liz Cheney invoked specific crimes, like conspiring to obstruct the electoral vote certification, and she squarely rejected the idea that Trump was being led by people around him. Instead, the committee had a laser beam focus on Trump’s central role in events. In the subpoena they sent to him on Friday, they clarified any doubt. In their view of the evidence, he “personally orchestrated and oversaw” the conspiracy..

In the federal system, there are numerous conspiracy charges prosecutors can choose from when it comes to indicting. Some are general and used across a broad spectrum of crimes. Others are more specific, like civil rights conspiracies or drug conspiracies. There is the seditious conspiracy statute currently being used to prosecute members of the Oath Keepers and the Proud Boys in connection with the insurrection. That statute requires proof of an agreement to use force in some way to interfere with, in the case of the militia groups, the transfer of power to the new administration. Publicly there is scant evidence that Trump himself entered into an agreement involving the use of force. While DOJ may have more, it would need to rise to the level of proof beyond a reasonable doubt. That could develop if the seditious conspiracy trials currently underway lead to more evidence and to cooperating witnesses. But, leaving seditious conspiracy aside, the more general conspiracy statute is something Trump’s lawyers have to be very concerned about at this point.

We’ve talked about the general conspiracy statute, 18 USC 371, before on Civil Discourse, using my very helpful chickens to illustrate key points about the law.

The basic gist of the statute is that it’s a crime for two or more people to agree to violate the law. The second prong of 18 USC 371 also makes it a crime “if two or more persons conspire . . . to defraud the United States, or any agency thereof in any manner or for any purpose.” That clause can also be used to address interference with governmental functions.

To convict on this charge, prosecutors would need to be able to prove beyond a reasonable doubt that (1) the defendant entered into an agreement, (2) to obstruct a lawful function of the Government, (3) by deceitful or dishonest means, and (4) committed at least one overt act in furtherance of the conspiracy. The notion of impeding a government function is broad. The statute doesn’t place limits on the methods a defendant uses to defraud the United States and extends generally to any interference with a lawful governmental function by dishonest means.

If interfering with certification of a presidential election doesn’t count as a violation of this statute, I don’t know what would. It’s the poster child for the crime.

So far, there is no direct evidence that Trump entered the conspiracy, at least not in public view. We don’t have a witness who will testify that he agreed with Trump or was there when Trump and others agreed to overturn the election. But there is plenty of circumstantial evidence and the absence of direct evidence isn’t a bar to a prosecution. You may not have a witness who can testify that they saw it snowing (direct evidence) but if you have one who can testify there was no snow on the ground when they went to sleep and the ground was covered in snow when they woke up six hours later, you have strong circumstantial evidence. Add in evidence that no one saw big trucks bringing in snow overnight and your evidence is getting very solid. That’s what the January 6 committee’s case against Trump is about. It’s a layering of circumstantial evidence into proof. It’s drawing inferences from Trump’s own statements about not accepting election results unless he won, and his campaign manager Brad Parscale’s testifying there was talk of claiming victory despite defeat as early as July of 2020. There is Trump’s refusal to call off his supporters as they overran the Capitol. There is so much more. The committee has neatly packaged up all of that circumstantial evidence, tied a big red ribbon around it, and presented it to DOJ.

The maximum sentence for a violation of 18 USC 371 is 5 years. While that might not seem like much, it’s a long time for someone in their late seventies. And I remain convinced Trump is likely to be indicted in connection with the documents found at Mar-a-Lago.

Whether or not DOJ will eventually charge Trump with a conspiracy is a different question, one they will answer on their own timeline, as the Attorney General has repeatedly said. They could be considering other charges as well.

There has been lots of criticism of Merrick Garland. Some people think he’s weak or slow. Others have said he’s afraid to charge Trump or that he’s too much of an institutionalist to do so. Although I still have questions about why DOJ doesn’t appear to have aggressively investigated the insurrection during Garland’s first year in office, I think the criticism that he’s too much of an institutionalist actually highlights one of his strengths, and perhaps, even the reason President Biden selected him for the job. At a time when one party is willing to burn down our institutions to hold onto power, we need someone who steadfastly believes the rule of law still matters.

One suspects Merrick Garland would have rather done anything than be the first Attorney General to indict a former president. The risk, of course, is becoming a banana republic where parties in power routinely prosecute their political opponents. But Trump’s conduct is so singular, and there is so much of it, that it is going to have to be addressed if the rule of law is going to continue to mean something in this country.

If Garland does prosecute, he’ll do it in a careful way precisely because of his commitment to the institutions. He won’t be out to get anyone; he’ll be out to do justice. He’ll do it in a way that is respectful of defendants’ rights, no matter what they’ve done and whether it’s the former president of the United States or other members of any conspiracy he may charge. That, of course, won’t be enough to make the former president’s fans happy, but it should be enough for the rest of the country. It will mean that in the face of great danger to the country, we got it right.

There are still so many unknowns. The clock is ticking, and Trump has an unpleasant knack for slipping out from underneath accountability. Whether he’s ultimately prosecuted or not, the committee has placed him squarely in a leadership role in the January 6 conspiracy. Trump is the drug kingpin of the insurrection.

Now, Trump can respond to those allegations and tell his side of the story by testifying in front of the committee. It’s unlikely he will—it would be more Trump’s style to demand an open mic and a televised appearance in front of the country than agree to the same questioning procedure with committee professional staff used with other witnesses. It’s not difficult to imagine he will refuse to show up if his demands aren’t met. But one way or the other, there will be a record of his response—ignoring a Congressional subpoena or complying with it, testifying under oath or refusing to do so. And we will all be able to draw the obvious conclusions from that.

We’re in this together,

Joyce