House Committee Investigating January 6 Riot Strongly Believes Trump & Cohorts Committed Numerous Federal Crimes

In a court filing on Wednesday, the House Committee investigating the January 6, 2021 attack on the US Capitol stated that it "has a good-faith basis" for concluding that Trump and his allies may have committed several federal crimes, including engaging in a criminal conspiracy to defraud the United States" (having fake electors submit bogus documents claiming that seven states, all won by Joe Biden, were actually won by Donald Trump) and obstructing an official congressional proceeding (the attempts to stop or delay the counting of electoral votes on January 6).

The information was included in a filing concerning the refusal of John Eastman, a conservative lawyer and key player in Trump's attempts to overturn the 2020 election, to turn over roughly 11,000 documents requested by the Committee. Eastman declined repeatedly to answer the Committee's questions, invoking the Fifth Amendment more than 150 times.

The filing includes 16 exhibits, including portions of testimony from Trump campaign adviser Jason Miller, White House communications aide Ben Williamson, Pence national security adviser Keith Kellogg, Pence counsel Greg Jacob, Pence chief of staff Marc Short, Acting Attorney General Jeff Rosen and Rosen's top adviser, Richard Donoghue. The deposition of Eastman (also included) reveals that he invoked his Fifth Amendment right against self-incrimination nearly 150 times. Other exhibits include a page from Trump's private Jan. 6 schedule.

Washington Post, March 2, 2022:

The committee argued in its filing that Eastman's claim of privilege was potentially voided by the "crime/fraud exception" to the confidentiality usually accorded attorneys and their clients, which holds that communications need not be kept confidential if an attorney is found to be assisting their client in the commission of a crime. They asked the judge deciding whether to release Eastman's emails to privately review evidence the committee has so far gathered to see if he believes it establishes that Eastman was assisting Trump in criminal acts. . . .

Former federal prosecutor Randall Eliason called the filing "a major development" . . . Eliason said the significance of the filing "is that the evidence being uncovered points clearly in the direction of possible criminal conduct by Trump himself in connection with the efforts to overturn the election. We can be sure that the Department of Justice is in contact with the committee and is watching closely."

The filing is intended to challenge Eastman's claim that he should not be required to turn over thousands of emails the committee has requested — and it attempts to show that Eastman directly encouraged people in the government to not follow the Electoral Count Act, the 1887 law governing the congressional certification process. . . .

The Committee, which has conducted 550 interviews, including state officials, Justice Department officials, and top Trump aides, believes evidence exists that Trump's repeated lies that the election had been stolen amounted to common law fraud.

From the Committee's filing:

As the courts were overwhelmingly ruling against President Trump's claims of election misconduct, he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the President-elect from assuming office. At the heart of these efforts was an aggressive public misinformation campaign to persuade millions of Americans that the election had in fact been stolen. The President and his associates persisted in making 'stolen election' claims even after the President's own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong. . . .

The evidence supports an inference that President Trump, plaintiff and several others entered into an agreement to defraud the United States by interfering with the election certification process, disseminating false information about election fraud, and pressuring state officials to alter state election results and federal officials to assist in that effort." It also referred to a recent ruling in which Judge Amit P. Mehta of the Federal District Court found that it was "plausible to believe that the president entered into a conspiracy with the rioters on Jan. 6, 2021". . . . In addition to the legal effort to delay the certification, there is also evidence that the conspiracy extended to the rioters engaged in acts of violence at the Capitol.

The filing also included information that Trump was told by at least 11 aides and close confidants "almost immediately after the polls closed in November 2020" that he had lost a fair election.

Committee member Jamie B. Raskin:

[Trump] understood what he was doing was wrong. I've never really doubted that from the beginning. But all of this evidence makes it certain that he had consciousness of guilt as he proceeded to try to overthrow the election result.

New York Times, March 3, 2022:

Yet Mr. Trump — time and again — discounted the facts, the data and many of his own advisers as he continued to promote the lie of a stolen election, according to hundreds of pages of exhibits, interview transcripts and email correspondence assembled by the House committee investigating the Jan. 6 attack for a legal filing released late Wednesday. . . .

In [the filing], Mr. Trump emerges as a man unable — or unwilling — to listen to his advisers even as they explain to him that he has lost the election, and his multiple and varied claims to the contrary are not grounded in fact.

At one point, Mr. Trump did not seem to care whether there was any evidence to support his claims of election fraud, and questioned why he should not push for even more extreme steps, such as replacing the acting attorney general, to challenge his loss.

"The president said something to the effect of: 'What do I have to lose? If I do this, what do I have to lose?'" Richard P. Donoghue, a former top Justice Department official, told the committee in an interview. "And I said: 'Mr. President, you have a great deal to lose. Is this really how you want your administration to end? You're going hurt the country.'"

[White House counsel Pat A. Cipollone told Trump that pursuing his plans to try to invalidate the results of the 2020 election would be a "murder-suicide pact".]. . .

During a conversation in the Oval Office, Mr. Trump's lead campaign data guru "delivered to the president in pretty blunt terms that he was going to lose," Jason Miller, another top campaign aide, told the panel. The president said he disagreed with the data expert's analysis, Mr. Miller said, because he thought he could win in court.

Mr. Miller also told the committee that he agreed with Attorney General William P. Barr's analysis that there had not been widespread fraud in the election, and "said that to the president on multiple occasions," the panel wrote in its filing.

In the chaotic postelection period, Mr. Trump's legal team set up a hotline for fraud allegations and was flooded with unverified accounts from people across the country who claimed they had evidence. . . .

Mr. Trump appeared to be aware of many of these reports, and would speak about them often with aides and officials, raising various theories about voting fraud even as they debunked them one by one.

"When you gave him a very direct answer on one of them, he wouldn't fight us on it," Mr. Donoghue, the Justice Department official, told the committee. "But he would move to another allegation."

Mr. Donoghue recalled, for instance, how he told Mr. Trump that Justice Department investigators had looked into, and ultimately discounted, a claim that election officials in Atlanta had wheeled a suitcase full of phony ballots into their counting room on Election Day.

Instead of accepting Mr. Donoghue's account, Mr. Trump abruptly switched subjects and asked about "double voting" and "dead people" voting, then moved on to a completely different claim about how, he said, "Indians are getting paid" to vote on Native American reservations.

After Mr. Donoghue sought to knock down those complaints as well, he told the committee, Mr. Trump changed topics again and wondered aloud why his numerous legal challenges to the election had not worked. . . .

Post:

The committee also released copies of emails exchanged between Eastman and Greg Jacob, an aide to Pence, as the siege unfolded. . . .

[T]he newly released emails provide fresh details of the dramatic exchange on Jan. 6.

At 12:14 p.m., Jacob blamed Eastman, in an email that was sent as the rioters stormed the Capitol, for "bulls---" that led to the vice president and his team being "under siege" and called his position "essentially entirely made up." He said that Eastman would never support such a position if it was made by Democrats.

Eastman wrote back blaming Pence and his team, saying, "you and your boss did not do what was necessary."

At 1:05 p.m. — as the pro-Trump mob was descending on the Capitol — Jacob wrote Eastman that "the advice provided has, whether intended to or not, functioned as a serpent in the ear of the President of the United States."

He continued: "Respectfully, it was gravely, gravely irresponsible for you to entice the President with an academic theory that had no legal viability, and that you well knew we would lose before any judge who heard and decided the case. And if the courts declined to hear it, I suppose it could only be decided in the streets."

At 4:45 p.m., Eastman wrote Jacob insisting that he had indeed counseled Trump that the vice president could not unilaterally determine the outcome of the electoral college vote. "But you know him," Eastman wrote, referring to Trump. "Once he gets something in his head, it is hard to get him to change course."

Even so, the emails show that at 9:44 p.m. — after the mob had been cleared from the Capitol and Congress returned to work, Eastman wrote to Jacob to ask once more that Pence stop the certification of Biden's victory. He wrote that he believed Congress was not following the exact procedure defined under the law that governs the counting of the electoral votes.

"So now that the precedent has been set that the Electoral Count Act is not quite so sacrosanct as was previously claimed, I implore you to consider one more relatively minor violation and adjourn for 10 days to allow the legislatures to finish their investigations, as well as to allow a full forensic audit of the massive amount of illegal activity that has occurred here."

The assertion would seem to provide evidence Eastman knew he was asking Pence to violate the law that dates to 1887.

Other emails exchanged between lawyers for Trump and Pence are cited here.

Joshua James, a 34-year-old regional leader of the Oath Keepers, pleaded guilty on Wednesday to seditious conspiracy and obstruction of an official proceeding for his actions in attacking the US Capitol. James is cooperating with the ongoing investigation.

Jennifer Rubin, Washington Post, March 3, 2022:

The definitions of [James's] crimes . . . are precisely the ones that may best fit Trump's behavior both before and on Jan. 6.

Also on Wednesday, the House Select Committee . . . revealed, "The facts we've gathered strongly suggest that Dr. Eastman's emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power."

In a filing in U.S. District Court in California seeking to enforce the subpoena, the committee states:

The evidence detailed above provides, at minimum, a good-faith basis for concluding that President Trump has violated section 18 U.S.C. § 1512(c)(2). The elements of the offense under 1512(c)(2) are: (1) the defendant obstructed, influenced or impeded, or attempted to obstruct, influence or impede, (2) an official proceeding of the United States, and (3) that the defendant did so corruptly. . . . The Select Committee also has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States in violation of 18 U.S.C. § 371.

Attached excerpts from interviews with witnesses before the committee set forth in granular detail conversations with Trump in which lawyers repeatedly told him that there was no evidence of fraud but he wanted to press ahead regardless. . . .

If the facts necessary to implicate Trump and his top advisers emerge, the Justice Department will be hard pressed to decline to prosecute.

I cannot remember the last time a Congressional Committee accused a President--in a court filing--of committing felonies. This isn't loose talk, it is a solemn court document, subject to all sorts of sanctions for misrepresentations, and backed by evidence they have uncovered. https://t.co/fEv3dqckXW

— Neal Katyal (@neal_katyal) March 3, 2022