The House panel investigating the Jan. 6, 2021, insurrection at the Capitol has previewed some of its findings in a federal court filing, and investigators for the first time said they have enough evidence to suggest then-President Donald Trump committed crimes.
That doesn’t necessarily mean that Trump will be charged, or even that the Justice Department will investigate. But the legal document offers an early look at some of the panel’s likely conclusions, which are expected to be submitted in coming months. The committee has interviewed more than 650 witnesses as it investigates the violent siege by Trump supporters, the worst attack on the Capitol in more than two centuries.
In the 221-page filing, the panel said it has evidence that the defeated Republican president and his associates engaged in a “criminal conspiracy” to prevent Congress from certifying Democrat Joe Biden’s election victory. Hundreds of Trump’s supporters violently bashed their way past police that day and sent lawmakers into hiding, interrupting but not stopping the certification.
The filing came in response to a lawsuit from John Eastman, a lawyer and law professor who was consulting with Trump while attempting to overturn the election and who is trying to withhold documents from the committee.
Eastman’s attorney, Charles Burnham, responded to the legal filing by defending Eastman’s efforts to protect his documents through attorney-client privilege. Investigating lawmakers argue there is a legal exception allowing a lawyer to disclose communications when they might be related to ongoing or future crimes.
Takeaways from the Jan. 6 committee’s court filing:
A CASE FOR FRAUD AND OBSTRUCTION
The committee says it has evidence of three crimes, all of which are related to Trump’s activity, and his coordination with Eastman, in the run-up to the insurrection.
In a “conspiracy to defraud the United States,” the committee argues that evidence it has gathered supports an inference that Trump, Eastman and several other allies of the former president “entered into an agreement to defraud the United States.”
The panel says Trump and his allies interfered with the election certification process, disseminated misinformation about election fraud and pressured state and federal officials to assist in that effort.
The panel also asserts that Trump obstructed an official proceeding, the joint session of Congress where the Electoral College votes are certified. The committee said Trump either attempted or succeeded at obstructing, influencing, or impeding the ceremonial process on Jan. 6 and “did so corruptly” by pressuring Vice President Mike Pence to try and overturn the results as he presided over the session. Pence declined to do so.
The last charge the committee lays out is “common law fraud,” or falsely representing facts with the knowledge that they are false. Trump embarked on a wide-scale campaign to convince the public and federal judges that the 2020 election was fraudulent and that he, not Biden, won the Electoral College tally. Election officials and courts across the country, along with Trump’s attorney general, rejected those claims.
As an example of such fraud, the committee noted that a Justice Department official told Trump directly that a Facebook video posted by his campaign “purporting to show Georgia officials pulling suitcases of ballots from under a table” was false, yet the campaign continued to run it. Georgia officials also repeatedly denied the claim.
“The president continued to rely on this allegation in his efforts to overturn the results of the election,” the filing says.
COURT ARGUMENTS, NOT CHARGES
While the document marks the committee’s most formal effort to link the former president to a federal crime, Congress does not have the power to bring criminal charges.
Still, members of Congress can formally refer crimes to the Justice Department, if they think they have sufficient evidence. It is unclear if the committee will take that step, and federal prosecutors have much of the information already.
House Intelligence Committee Chairman Adam Schiff, a Democratic member of the panel, said Thursday, “The department shouldn’t be waiting on our committee.” Schiff has urged the Justice Department to be more aggressive in investigating the insurrection.
The department is already investigating and prosecuting hundreds of rioters who broke into the Capitol. Attorney General Merrick Garland has repeatedly said that prosecutors will follow the facts and the law wherever that takes them, stopping short of saying whether Trump is being investigated.
Much of the committee’s filing focuses on the expansive, ultimately unsuccessful effort by Eastman to convince Trump and the White House that there was a viable legal avenue for his baseless election fraud claims. In a series of memos ahead of Jan. 6, Eastman pushed for Pence to intervene in his ceremonial role and halt the certification of the electoral votes, a step Pence had no legal power to take and refused to attempt.
In an attempt to establish that Eastman was planning a crime, the committee included excerpts of witness transcripts in which former White House aides and other officials discussed Eastman’s efforts.
In one interview, Pence’s chief counsel described a meeting with Eastman at the White House on Jan. 5.
“He came in and said, ‘I’m here asking you to reject the electors,’” Greg Jacob told the committee, adding that he took notes of the meeting contemporaneously. “That’s how he opened at the meeting.”
A ‘SERPENT IN THE EAR’
On Jan. 6, as Pence presided over the congressional session and later hid inside the Capitol from rioters calling for his hanging, Eastman and Jacob exchanged a heated series of emails.
The emails give an extraordinary window into the extent of the pressure campaign – which continued into the evening, even after the rioters had been pushed out and the frazzled Congress reconvened to certify the results.
As the rioters broke into the Capitol, Pence’s chief counsel, Jacob, wrote to Eastman that “I respect your heart” but that the legal framework he was putting forward was “essentially entirely made up.”
He added, “And thanks to your bulls—-, we are now under siege.”
Eastman angrily responded that “the ‘siege’ is because YOU and your boss did not do what was necessary.”
Jacob, who was sheltering with Pence in the Capitol at the time, apologized. But he did not let up.
“The advice provided has, whether intended or not, functioned as a serpent in the ear of the president of the United States, the most powerful office in the entire world,” Jacob wrote Eastman. “And here we are.”
As Congress reconvened that evening, Eastman wrote Jacob to “implore” that Pence adjourn the count to delay the certification. That did not happen, and Congress certified Biden as the winner in the early hours of Jan. 7.
Still, Eastman made clear that there wouldn’t be hard feelings.
“When this is over, we should have a good bottle of wine over a nice dinner someplace,” Eastman wrote amid the exchanges.
NEW QUESTIONS FOR LAWMAKERS
While Eastman repeatedly invoked his Fifth Amendment rights during his interview with the committee, members and staff asked him hours of questions anyway. The resulting transcript provides new clues about what lawmakers are investigating.
One of the biggest unanswered questions about Jan. 6 concerns the role that GOP lawmakers may have played. The committee has asked several House Republicans for information about their communications with Trump that day, and the transcript shows interest in GOP senators as well.
Investigators asked Eastman whether Sens. Ted Cruz of Texas and Josh Hawley of Missouri — the two senators who formally objected to the count that night — had been invited to speak at the president’s rally the morning of Jan. 6, at which Trump told the angry crowd to “fight like hell.” And they asked if Eastman knew why the senators did not speak at the rally.
They also asked Eastman if he had any conversations with Cruz “regarding efforts to change the outcome of the 2020 election,” and about a conversation he had previously said he had with Utah Sen. Mike Lee.