The Week Ahead

December 18, 2022

The reported sellout of Donald Trump’s digital trading cards (you can’t make this stuff up) is likely to be the last good news the former president hears for quite some time. On Monday, the January 6 committee holds its final hearing. We can expect to learn details about criminal referrals the committee will make to DOJ, as well as possible referrals to other entities like the House Ethics committee and State Bar Associations. On Tuesday at 3 p.m., the House Ways and Means committee will meet behind closed doors to vote on whether to make some or all of the six years of Trump’s tax returns public. On Wednesday, the January 6 committee is tentatively scheduled to release its final report, which will presumably incorporate the voluminous historical record it has created. Also, there is the ongoing work of the Fulton County district attorney, which could result in indictments at any time. Also in the wings, possible Espionage Act and other charges related to classified materials Trump kept at Mar-a-Lago.

Merry Christmas.

Four of the lawyers on the committee, led by Maryland representative Jamie Raskin, took the lead in drafting recommendations on who to refer and on what charges, for the full committee to consider. The committee will take up those proposals tomorrow at 1 p.m. Eastern.

DOJ isn’t obligated to indict either the people or the charges the committee recommends. It could indict none, some, or all of the recommended charges, and it’s also free to consider others. In our system, prosecutors, and ultimately the attorney general, bear the sole responsibility for deciding who to charge and with what to charge them. The committee knows all of this, and will be forging ahead over some concerns that the very act of making recommendations politicizes any prosecutions DOJ embarks on down the road, permitting defendants to argue they are tainted by politics. There are also concerns that releasing a detailed, exhaustive recitation of the evidence the committee has compiled while the special counsel is mid-investigation could give potential defendants a head start on assessing possible weaknesses in the government’s case.

That said, the committee is slated to go ahead on Monday. All told, it has has interviewed more than 1,000 witnesses and collected millions of documents to create a thorough record of events leading up to and including the insurrection on January 6, 2021, and some of the fallout afterward. The report itself could be massive, given the body of information the committee has to draw upon. There shouldn’t be any shortage of reading material for all of us heading into the holiday weekend.

The report could provide new evidence that the committee didn’t have time for in earlier hearings or that was discovered after they were concluded. There are still many questions about law enforcement’s failure to anticipate events and the way they handled them once they were in progress. There are a lot of big question marks about what went on at the Secret Service. So there is potential for the committee to include new and important information in the proceedings tomorrow and/or the final report it issues later this week.

There is public reporting suggesting there are at least three charges the committee is considering. It’s entirely possible there are more, but since these three are being widely mentioned, we’ll take a deeper look at them so we can assess any recommendations the committee makes.

1. Insurrection 18 U.S.C § 2383

How the statute reads: “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, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

Obviously, this conviction bears with it a big penalty—a prohibition against future service in federal office, presumably including the presidency. But it’s also the most difficult of the charges under consideration to convict on.

That’s not because of any factual deficiency in the government’s evidence. Trump certainly appears to have publicly “incited” “insurrection against the authority of the United States” when he summoned the mob to Washington on January 6 and then set them in motion toward the Capitol to interfere with certification of the Electoral College results. To make it worse, Trump did that with knowledge that at least some in the crowd were armed. “Take down the mags,” he said, a reference to removing the magnetometers that kept armed people from entering the area reserved for his speech on January 6. Yes, Trump tweeted at one point to encourage the crowd to stay peaceful, but there is a significant body of evidence about his intent and purpose, including some of his own words.

The potential legal issue here is one of whether Trump’s speech was protected by the First Amendment. In criminal cases, a defendant can avoid conviction if he can show that the conduct he is charged with committing is actually speech protected by the First Amendment.

The standard is set forth is a Supreme Court case, Brandenburg v. Ohio, from 1969. Brandenburg was a Ku Klux Klan leader. He gave a speech on a remote farm, complete with Klan regalia and racist and antisemitic comments, but the action he referenced was a future march on Washington.

The Court decided that speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and is “likely to incite or produce such action.” So the action must be imminent and the speaker’s words likely to incite or produce it. While on its face, this seems to fit the facts, the government will have to prove beyond a reasonable doubt that Trump was trying to produce both imminent and unlawful action—Trump would be able to point to his use of the word “peaceful” in tweets that day and argue that if there is any doubt about his intent, a jury would have to acquit him.

If a jury were to convict despite that argument, this would be the type of issue that surfaces on appeal. The risk with bringing an insurrection charge is that the government might get a conviction at trial, only to lose it in the appellate process, possibly years down the road. Bottom line, it’s a risky option, with the possibility of a big payoff if it prevents Trump from returning to the presidency. Sadly, Senate Republicans could have done that had they convicted him on impeachment charges in January 2021, but they lacked the resolve to put country over party.

2. Obstruction of Official Proceedings 18 U.S.C § 1505

How the statute reads: “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.”

While the obstruction of an official proceeding carries a lesser sentence and no threat of a bar from serving as president, it’s still a significant charge.

One question that comes up here is what it means to do the action in the statute “corruptly.” As used in § 1505, it means "acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information." Since that was more or less Trump’s modus operandi throughout the 2020 election period, and of course given that Trump’s purpose was to remain in power after losing the election, that appears to be provable in this case, making this statute a strong possibility not just for committee referral but for DOJ as well.

3. Conspiracy to Defraud the United States 18 U.S.C § 371

How the statute reads: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.”

18 U.S.C § 371 is the primary statute used to charge conspiracy in the federal system, although there are other statutes tailored to specific circumstances like drug conspiracies, civil rights conspiracies, and, of course, seditious conspiracy. It’s the second clause of the statute that seems likely to get traction here, criminalizing conspiracies that seek to defraud the United States. Trying to upset a lawful election would seem to ring that bell.

One of the most interesting questions about a possible conspiracy charge here would be, who are the co-conspirators? Conviction for conspiracy requires that the government prove an agreement was made between two or more persons, and there are all sorts of possibilities here, ranging from chief of staff Mark Meadows, who provided the committee with documents but ducked full testimony, to the bad lawyers like Rudy Giuliani, John Eastman, Cleta Mitchell, and Sidney Powell who were around Trump, to others in his inner circle. If the committee goes this route, I’ll be very interested to see who they suggest should be indicted along with Trump, if that’s the route they go.

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When the committee subpoenaed Trump, chairman Bennie Thompson said, “This is a question about accountability to the American people. He must be accountable.” We know what the committee’s role isn’t—it doesn’t get to decide who gets indicted. But that doesn’t mean its work isn’t valuable. The committee is creating the permanent historical record of what happened here, no small task. Part of its job is to use that map of events to make sure nothing like this ever happens again in the United States. At the same time, it will be creating a road map of sorts that prosecutors may take up, if they will, explaining the evidence through the lens of the people who obtained it. I expect the chairman will take his earlier comments seriously, looking towards the future and trying to find ways to hold Trump and others accountable for what they did on January 6 legally, politically, and professionally.

It’s going to be the kind of week that demands our attention. It will be the committee’s last chance to leave its stamp on Trump’s efforts to functionally end democracy in American by holding onto power after the voters turned him out. I’m eager to see their compiled evidence and recommendations.

We’re in this together,

Joyce