Eisen, Perry, Wertheimer In The New York Times: The Jan. 6 Committee Just Made History. Here’s What That Means For Prosecutors.
Given the facts that were revealed by the House January 6th Committee through its 18-month investigation, “these hearings had to end with criminal referrals against Donald Trump and his minions,” Amb. Norman Eisen (ret.), E. Danya Perry, and Democracy 21 President Fred Wertheimer write in an essay published by The New York Times.
“The House committee articulated a powerful legal case encompassing the many schemes of Mr. Trump, John Eastman, and others, including the audacious promotion of false electoral slates,” the authors write. “The committee also recommended prosecution of Mr. Trump on charges of inciting insurrection and giving aid or comfort to insurrectionists — a charge unseen since the Civil War. The referrals make clear to prosecutors and to Americans just how dangerous the attempted coup was, and how vulnerable our system was (and is) to such assaults.”
Eisen, Perry, and Wertheimer explain that the Committee has rightly focused on a “short list” of prospective defendants, “against whom the evidence is most damning, providing critical context to the prosecutors. Focusing on the very best cases avoids diluting the effect of the referrals with more tenuous theories against a large number of actors, and emphasizes the cases the prosecutors can actually win.”
However, the authors note, the focus on Trump and Eastman “should not be read to exclude others who are named as apparent co-conspirators from further investigation by the Department of Justice.”
According to Eisen, Perry, and Wertheimer: “Two of the statutory bases for the referrals — conspiracy to defraud and obstruction of an official proceeding — were already the subject of the ‘more likely than not’ criminal findings made by a federal district court litigating a committee subpoena.”
But, the authors explain, the other two criminal referrals – inciting and assisting an insurrection and giving aid or comfort to insurrectionists, and conspiracy to make a false statement – are notable.
“The committee has gripped the nation by constantly offering surprises, and it has here served them up yet again,” they write.
The authors discuss in detail the legal basis for the criminal referrals made by the House January 6th Committee.
The House January 6th Committee, Eisen, Perry, and Wertheimer write, “has provided the public, the press, and above all federal prosecutors with a powerful aid. A well-reasoned outside opinion is rare and valuable as prosecutors make these highly consequential decisions.”
Still, they warn, “these are largely unprecedented cases. They will not be easy to bring or to win. Ultimately, that is why the committee’s referrals are so meaningful. Prosecutors need all the help they can get, and the Jan. 6 committee just gave it to them.”
Read the op-ed on The New York Times or below.
The New York Times | 12/19/2022
The Jan. 6 Committee Just Made History. Here’s What That Means For Prosecutors.
By Norman Eisen, E. Danya Perry, and Fred Wertheimer
In voting on Monday to issue a sweeping final report, the Jan. 6 committee has honored its duty and the Constitution. When the full report is released this week, there will be much to review and process for our country, our government and American history. But given the facts that have been revealed, these hearings had to end with criminal referrals against Donald Trump and his minions.
The House committee articulated a powerful legal case encompassing the many schemes of Mr. Trump, John Eastman and others, including the audacious promotion of false electoral slates. The committee also recommended prosecution of Mr. Trump on charges of inciting insurrection and giving aid or comfort to insurrectionists — a charge unseen since the Civil War. The referrals make clear to prosecutors and to Americans just how dangerous the attempted coup was, and how vulnerable our system was (and is) to such assaults.
The committee demonstrated its seriousness of purpose by refusing to put forth a laundry list of defendants. The committee members have all along thought as legislators and public educators, but also have put themselves in the minds of prosecutors. That led them to rightly focus on a short list of prospective defendants against whom the evidence is most damning, providing critical context to the prosecutors. Focusing on the very best cases avoids diluting the effect of the referrals with more tenuous theories against a large number of actors, and emphasizes the cases the prosecutors can actually win.
There is a logic to suggesting the consideration of charges against Mr. Eastman, who was the outside coup counsel, together with his client Mr. Trump and others such as Jeffrey Clark, who was instrumental in advocating the coup from within as a government lawyer. The committee wrote that Mr. Clark “stands out as a participant in the conspiracy.” A focus on the client and his counsel is not only powerfully symbolic — this was, after all, an attempted coup that was advanced by attorneys, not soldiers — it’s also driven by the evidence that the committee has accumulated. It indicates that a strong case can be advanced against Mr. Trump, Mr. Eastman and others for their scheme to fraudulently declare Mr. Trump president by pushing a staggering variety of falsehoods culminating in proposed fake electoral slates.
The evidence detailed in the committee’s hearings and the executive summary of the committee report reveal how Mr. Eastman and Mr. Clark worked to advance Mr. Trump’s goal of overturning the election. Mr. Trump loudly challenged the outcome, and Mr. Eastman amplified those false claims in litigation, testimony and advocacy. Mr. Clark urged those false claims within the halls of the Department of Justice, where he was the acting head of the civil division.
The committee exposed how, as other ploys failed, the scheme to send false electors to Congress intensified. One of the most striking moments of the nine committee hearings was the video testimony of Ronna Romney McDaniel, the Republican National Committee chairwoman, describing how Mr. Trump called her and then “turned the call over” to Mr. Eastman, who asked for her help in gathering the false electors in key states. No less startling was the testimony by Mr. Clark’s superiors at the Justice Department about his proposed letter to Georgia election officials to try to get them to open the door to the false electors effort. (Disclosure: Mr. Eisen was part of bar complaints against Mr. Eastman and Mr. Clark.)
It is not just the evidence the committee has derived that makes the referrals so strong, but also the law. The legal theories in the executive summary should be persuasive to prosecutors and the public for the discipline of what they include — and for what they omit. Two of the statutory bases for the referrals — conspiracy to defraud and obstruction of an official proceeding — were already the subject of the “more likely than not” criminal findings made by a federal district court litigating a committee subpoena. But the other two statutory bases for the criminal referrals are notable. The committee has gripped the nation by constantly offering surprises, and it has here served them up yet again.
Perhaps the biggest of those surprises is the inclusion of a referral for inciting and assisting an insurrection and giving aid or comfort to insurrectionists under 18 U.S.C. 2383. That law derives from one first enacted in 1862 during the Civil War to provide for criminal penalties against Confederates and their accomplices attempting a violent secession from the Union.
Although the statute is seldom used, the committee is correct in its assessment that it applies to Mr. Trump’s conduct by summoning and whipping up the insurrectionists on Jan. 6 and then by failing to take action for three hours. The committee offers numerous examples of relevant misconduct, from Mr. Trump’s infamous remarks on the Ellipse, knowing that some of his listeners were armed, to his tweet attacking his vice president, Mike Pence, while the insurrection was underway, to his affectionate comments that day about the rioters (even if asking them to respect law enforcement).
This referral parallels the expected obstruction of Congress recommendation, providing a belt-and-suspenders approach to securing justice for the events of Jan. 6. Moreover, the Section 2383 referral sets up possible disqualification of Mr. Trump as a presidential candidate. That is because the statute tracks Section 3 of the 14th Amendment, which prohibits someone who has “given aid or comfort to the enemies” of the United States from serving in an elected, judicial or military office. Thus, the committee’s evidence and analysis will be useful to those asking election officials and courts to consider whether Mr. Trump must be excluded from primary ballots.
And who knows, it just may persuade prosecutors, too. After all, seditious conspiracy charges were also rare until this month’s landmark convictions of Stewart Rhodes and Kelly Meggs for conspiring to promote violent insurrection on Jan. 6.
In the 14th Amendment context, citizens could use the committee report to go to their state election officials to argue that Mr. Trump is prohibited from holding office and so from appearing on the ballot. There need not be a criminal conviction or even criminal charges; these citizens can point out that the constitutional prohibition has been prompted by the committee’s evidence. However those decisions by election officials turn out, the next stop will be the courts, which have already held that Section 3 violators can indeed be barred.
The committee also advances a false statements theory under 18 U.S.C. 1001. Here it makes the case that the fake electoral slates pressed on Congress and the National Archives by Mr. Trump and his associates are actionable as false statements.
There’s a simplicity to the false statements that complements the more sweeping nature of the broad 18 U.S.C. 371 conspiracy to defraud the United States that the committee also articulates. You can’t press phony electoral slates on Congress any more than you can spend counterfeit cash in the House cafeteria. It is not complicated, and it is a valuable addition to the public discourse and to prosecutors’ thinking.
There’s much more that could be said about everything else in the executive summary the committee just approved. The focus on Mr. Trump and Mr. Eastman should not be read to exclude others who are named as apparent co-conspirators from further investigation by the Department of Justice. Prominent among them, in addition to Mr. Clark, are Mr. Trump’s former chief of staff Mark Meadows and the outside attorney Kenneth Chesebro. However, in a further showing of the committee’s restraint, the executive summary notes that it “does not attempt to determine all of the participants” in the offenses referred — but that federal and state prosecutors have the additional investigative tools to make those determinations. They should do so expeditiously.
But for now the referrals are the main event. By focusing on a short list of potential defendants and charges, and substantiating them, the committee has provided the public, the press and above all federal prosecutors with a powerful aid. A well-reasoned outside opinion is rare and valuable as prosecutors make these highly consequential decisions.
Still, these are largely unprecedented cases. They will not be easy to bring or to win. Ultimately, that is why the committee’s referrals are so meaningful. Prosecutors need all the help they can get, and the Jan. 6 committee just gave it to them.
Norman Eisen was special counsel to the House Judiciary Committee during the first impeachment of Donald Trump. E. Danya Perry is a former federal prosecutor and New York State corruption investigator. Fred Wertheimer is president of Democracy 21, a nonpartisan nonprofit that works to strengthen American democracy.
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