Trump Committed Four Crimes, Say January 6 Committee

The ball is now in Merrick Garland's court.

Over the weekend, we learned that the House committee investigating the Capitol Riots were expected to make at least three criminal charges against former President Donald J. Trump. Yesterday, it happened.

POLITICO (“Jan. 6 committee formally accuses Donald Trump of 4 crimes“):

The Jan. 6 select committee on Monday voted to formally accuse Donald Trump of four crimes, including assisting an insurrection, in his bid to subvert the transfer of presidential power to Joe Biden.

The panel contended that its evidence proved Trump provided “aid and comfort” to a mob that was ransacking the Capitol in service of his attempts to reverse his loss in 2020. It also said Trump could be charged with obstructing Congress’ Jan. 6 joint session, conspiracy to make false statements to the National Archives and conspiracy to defraud the United States.

The panel has long contended Trump broke the law. But its new report — which the committee voted to release but has yet to become public — is expected to add vivid new details of that effort, particularly about the cast of enablers who facilitated Trump’s gambit, from Republican members of Congress to a team of lawyers pushing fringe legal theories to shadowy operatives awash in conspiracies. The panel also released the 160-page executive summary of its report, capturing the contours of its case against Trump.


The recommended referral for insurrection mentions U.S. District Court Judge Amit Mehta’s ruling in February, which said Trump’s language plausibly incited violence on Jan. 6 and cited the Senate’s 57 votes in last year’s impeachment trial to convict Trump on “incitement of insurrection.”

Charging decisions rest entirely with DOJ prosecutors, not Congress, but panel members have increasingly stressed the impact their transmission to the department could have on public opinion — viewing it as part of building a historical record around the attack. Special Counsel Jack Smith is currently conducting a wide-ranging investigation of Trump’s scheme to cling to power, and the select panel has also moved in parallel with DOJ’s effort to prosecute hundreds of Trump supporters who attacked the Capitol.

More significant than the referrals to the department and other outside entities could be the enormous cache of evidence the panel is readying for release this week. That includes transcripts of more than 1,000 witness interviews and documents that could help prosecutors determine which witnesses might have committed crimes.

The select committee’s final meeting came on the two-year anniversary of Trump’s Dec. 19, 2020, tweet in which he urged allies to descend on Washington for a “wild” protest against the election results. Congressional and DOJ investigators view that tweet as a crucial turning point — emboldening extremists who were seeking to aid Trump’s effort and sparking an intense focus on a day that is typically a ceremonial aspect of the transfer of power.

Court records show that in dozens of cases, particularly among members of the Oath Keepers and Proud Boys, the tweet was seen as a call to action and a validation of their desire to “stop the steal.”

Trump, who routinely reiterates discredited claims that the 2020 election was stolen and should be invalidated — a constitutional impossibility — spent the weekend railing against the select committee, which he described as a group of “misfits” and “thugs.”


At the heart of the committee’s story is evidence that Trump began planning to overturn the election months before voters went to the polls. Trump would follow the advice of allies like Rudy Giuliani, Steve Bannon and Roger Stone to declare victory on election night, despite signs that Biden was leading or likely to take the lead in several key swing states.

And after Biden’s victory was all but certain, Trump ignited a multifaceted plan to subvert it. He began to pressure Republicans in state and local governments to refuse to certify Biden’s win and instead appoint pro-Trump presidential electors. He leaned on the Justice Department — and nearly installed new, pliable leaders until the threat of a mass resignation forced him to back off — to support his discredited claims of fraud. And he assembled allies in Congress to mount a last-ditch challenge to the election results on Jan. 6, 2021.

As that fateful day approached, Trump exerted withering pressure on then-Vice President Mike Pence to single-handedly subvert the election on Jan. 6, when he presided over the constitutionally required count of Electoral College votes. Pence’s resistance to that push was the final dagger in Trump’s scheme.

But Trump publicly kept the pressure on Pence, and after calling his supporters to Washington specifically to protest the Jan. 6 session of Congress, he whipped many in the crowd into a frenzy, and urged them to “fight like hell” and to march on the Capitol to pressure Pence and Republican lawmakers to vote against certifying Biden’s victory. The committee’s evidence suggested Trump had been briefed that many members of the crowd were armed even before he issued his directive.

None of this is surprising to those of us who have followed the news closely. But, it can’t be stressed enough, that is a small percentage of the American populace. Further, it’s considerably more than I expected to come out of this process one official Republican support for it was withdrawn.

Time will tell what impact this has. Will Trump actually be charged? Will a jury convict him? Will he actually go to jail? Will it derail another bid for the Presidency? We shall see.

That doesn’t mean there isn’t a lot of speculation. Below are some notable attempts.

Maggie Haberman, NYT (“A Diminished Trump Meets a Damning Narrative“):

As the summer and the House Jan. 6 committee’s hearings began, former President Donald J. Trump was still a towering figure in Republican politics, able to pick winners in primary contests and force candidates to submit to a litmus test of denialism about his loss in the 2020 election.

Six months later, Mr. Trump is significantly diminished, a shrunken presence on the political landscape. His fade is partly a function of his own missteps and miscalculations in recent months. But it is also a product of the voluminous evidence assembled by the House committee and its ability to tell the story of his efforts to overturn the election in a compelling and accessible way.

In ways both raw and easily digested, and with an eye for vivid detail, the committee spooled out the episodic narrative of a president who was told repeatedly he had lost and that his claims of fraud were fanciful. But Mr. Trump continued pushing them anyway, plotted to reverse the outcome, stoked the fury of his supporters, summoned them to Washington and then stood by as the violence played out.


To emphasize that point, the committee did something Congress had never done before: It referred a former president to the Justice Department for criminal prosecution, a largely symbolic step but one that only added to the sense that Mr. Trump is starting his 2024 presidential campaign under a number of very dark legal clouds.

Federal prosecutors are investigating not only Mr. Trump’s efforts to thwart the results of the election, but also his mishandling of presidential records and classified material that he took with him when he left the White House. A prosecutor in Georgia is barreling ahead with an investigation of his efforts to reverse his election loss in that state, and his company, the Trump Organization, was convicted in New York this month of tax fraud.

Whether Mr. Trump’s legal woes and political missteps will keep him from winning his party’s nomination again is another matter.

Mr. Trump still has a durable base of support within the party, though just how large it is at this point is up for debate after a handful of public polls have shown more Republican voters backing Gov. Ron DeSantis of Florida as an alternative. Other potential candidates are also watching carefully, weighing their chances if they get into a race with a weakened Mr. Trump.

To some, the talk of Mr. Trump’s current fortunes is like a movie they have seen before, one in which the lead figure is left for dead only to rise again.

Josh Gerstein, POLITICO (“DOJ cares about the evidence, not the criminal referrals“):

The historic criminal referral the House Jan. 6 committee issued urging the Justice Department to pursue charges against President Donald Trump is unlikely to sway many minds among prosecutors already pursuing multiple investigations, former DOJ officials said.

Prosecutors are more interested in the thousands of pages of witness statements and other records gathered by the House panel over the past 15 months, current and former officials said.

“I’m sure the Attorney General will welcome any new evidence the committee sends over, but the authority to indict rests with the executive branch, not Congress,” said University of Baltimore Law School Dean Ronald Weich, a former DOJ liaison to Congress. “The decision of whether to bring criminal charges is solely within the purview of the Justice Department. I expect DOJ to respond courteously to the committee, but the referral will not change the outcome.”

Some ex-prosecutors were even more dismissive of the Congressional referral. “I think a referral will have zero practical effect on what DOJ does,” said Randall Eliason, a former federal public corruption prosecutor in Washington. “They are already investigating, and they’re not going to decide whether or not to charge based on whether they got a referral from Congress.”

Just last month, Attorney General Merrick Garland emphasized prosecutors wanted to see the House’s evidence, but he notably omitted any desire to see what conclusions lawmakers reached about what that evidence proved. “We would like to have all the transcripts and all of the other evidence collected … by the committee, so that we can use it in the ordinary course of our investigations,” Garland told reporters gathered in his conference room at DOJ headquarters.

In some ways, the House’s new criminal referral could have less impact than others Congress has sent to the Justice Department in the past. That’s because while some referrals spur DOJ into action, prosecutors already have investigations open into the main areas where the Jan. 6 committee sees potential crimes: Trump’s alleged incitement of the attack on the Capitol and his prolonged effort to undermine the 2020 presidential election results.

David Frum, The Atlantic (“Justice Is Coming for Donald Trump“):

“Many secrets, no mysteries”: That is the basic rule of all Donald Trump scandals.

There has never been any mystery about what happened on January 6, 2021. As Senator Mitch McConnell said at Trump’s second impeachment trial, “There’s no question—none—that President Trump is practically and morally responsible for provoking the events of the day.”

Thanks to the work of the congressional committee investigating the attack on the Capitol, Americans now have ample detail to support McConnell’s assessment. They know more about when and how Trump provoked the event. They have a precise timeline of Trump’s words and actions. They can identify who helped him, and who tried to dissuade him.


To repeat McConnell’s phrase, it’s “practically and morally” very difficult to hold a wayward president to account. An American president is bound by law and operates through legal institutions, but a president also has sources of personal authority that are not beholden to the law and are exercised outside institutions. Trump drew more deeply than most presidents on nonlegal, noninstitutional authority.

He and his core supporters repeatedly threatened that any attempt to apply laws to him would provoke violence against the law. Trump allies and Trump himself have warned of riots if he were ever prosecuted.

Maybe these threats are empty boasts. But nothing like them has ever been heard before from a modern American leader. On January 6, Trump welcomed political violence on his behalf—and got what he wanted. He has not repented or reformed in the two years since.

But the very threat makes it all the more necessary to proceed with the January 6 Committee’s criminal referrals. If Trump does not face legal consequences for the events of that day, he and his supporters have reason to believe that Trump somehow frightened the U.S. legal system into backing down from otherwise amply justified action.

Show Trump a line, and he’ll cross it. That was his record as president, down to his last days in office, when he absconded with boxes of government materials as though they were his private property. Trump has already announced a run for president in 2024. Whatever happens with that run, his likeliest Republican rivals are studying his methods, considering which to emulate and which to discard. The incitement of violence by the head of the government is not an infraction that can be dismissed and forgiven by any political system that hopes to stay constitutional.

For six years, the job of upholding the rule of law against Donald Trump has been passed from one unwilling set of hands to the next. Now the job has returned to where it started. There is nobody else to pass it to. The recommendation has arrived. The time for justice has come.

Ryan Goodman, Just Security (“How Jan. 6th Committee’s Revelations of Interference in Their Investigation Can Enable the Special Counsel“):

On Monday, the House Select Committee investigating the January 6th attack on the U.S. Capitol released an executive summary of its final report, which focuses primarily on former President Donald Trump’s alleged criminal efforts to overturn the 2020 election. The committee, however, also presented new evidence of criminal efforts to interfere with its investigation – on the part of some witnesses, their attorneys, and others associated with the former president. It is the kind of evidence that may have far-reaching implications including bolstering Special Counsel Jack Smith’s January 6th and Mar-a-Lago investigations. 


The committee’s revelations accordingly sweep in a set of lawyers who have exposed themselves to criminal liability. The committee also identified some witnesses who appear to have followed through by lying to the committee. 

These individuals may not have any criminal exposure involving the scheme to overturn the election itself, but now have criminal exposure for their actions toward the congressional investigation as part of a coverup. Their potential criminal liability could provide leverage for Special Counsel Smith to try to flip individuals to cooperate against Trump in the January 6 investigations and, if they also have insights into Mar-a-Lago, then in that investigation as well. 

More specifically, according to the committee’s summary, one “lawyer had advised the witness that the witness could, in certain circumstances, tell the Committee that she did not recall facts when she actually did recall them.” 


It can be a federal crime for any witness to tell congressional investigators that she does not recall information, when she does in fact clearly recall. It is also a federal crime to counsel someone to commit that act. Indeed, one of the most incriminating Nixon tapes included the sounds of President Richard Nixon coaching his senior aides to lie by claiming “I don’t remember, I can’t recall.” 


“Several top Richard Nixon White House aides went to prison in part for perjury after insisting they couldn’t recall details surrounding Watergate that later proved disingenuous.” Darren Samuelsohn recounted in an analysis in 2017 of the general topic of falsely claiming not to recall. Others who have falsely claimed a faulty memory have met similar fates.

The core federal crimes include the federal offense of making intentional false statements (18 USC 1001). That law penalizes an individual who “covers up by any trick, scheme, or device a material fact” before congressional investigators. What’s more, witness tampering of the sort described by the committee is potentially covered by federal criminal statute as well (e.g., 18 USC 1505 and 18 USC 1512). 

The offence of witness tampering applies to “whoever … corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— (1) influence, delay, or prevent the testimony of any person in an official proceeding; [or] (2) cause or induce any person to – withhold testimony … from an official proceeding.”

Goodman’s piece reinforces my longstanding hope that the investigations would uncover enough evidence to pressure Trump’s underlings to testify against him. We shall see.

The Justice Department still has quite a bit of time. But, if they’re going to charge Trump, they really need to do so well ahead of the Republican primaries. In 2020, the Democrats held their first debates on June 26 and 27 of 2019. The Republicans didn’t have contested primaries last cycle, since they had a sitting President. The 2016 debates kicked off August 6, 2015. We don’t yet have dates for the 2024 cycle but late June 2023 seems a reasonable guess. So, they’ve got six months, maximum, before they’re seen as directly interfering with the nomination process.

FILED UNDER: *FEATURED, Congress, Crime, Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Kathy says:

    I take a more nuanced view.

    The committee found evidence for four crimes. There may be many more not within the committee’s purview, like those involving theft and mishandling of classified government documents.

  2. daryl and his brother darryl says:

    Notably, the GOP response has been extremely muted.
    Also; Everyone who testified in front of the Select Committee, save for one, was a Republican (with the exception of police officers, etc.). Almost everyone who claims Trump is innocent refused to testify, or claimed the Fifth.
    In spite of claims by Trump that tons of evidence has come out, not one piece of exculpatory evidence was presented by any of Trump’s supporters who DID choose to testify.
    Four Republicans who refused to honor subpoenas and have been referred to the toothless ethics committee; Kevin McCarthy, Jim Jordan, Scott Perry, and Andy Biggs. McCarthy wants to be Speaker and Gym Jordan wants to lead the Judiciary. How will that work when they subpoena someone?
    All that said, this is all theater until Jack Smith makes a decision.

  3. Just nutha says:

    Or put another way, the DOJ only needs to drag their feet for 6 months. Not a difficult task.

  4. Michael Reynolds says:

    The politics of this have flipped. Many if not most Republican office-holders are hoping Trump is brought down. That gives them the obligatory ‘injustice’ to obsess over and stoke the rustic White folks rage, while clearing a path for the various Führer wanna-bes. OTOH, Dems would rather run against Trump than DeSantis or Youngkin.

    Setting that aside, Trump should go to prison. He’s a criminal, a traitor, the Jefferson Davis of the Confederate LARPers. He must not be allowed to get away with his crimes, which go well beyond the House committee’s referrals.

  5. CSK says:

    Trump is now accusing the Jan. 6 Committee of claiming that he never believed that he’d won in 2020.

    It’s an interesting defense: Say that you were justified in using criminal means to overturn an election because you believed you’d won it.

  6. Scott F. says:

    So, they’ve got six months, maximum, before they’re seen as directly interfering with the nomination process.

    With all the legwork already done by the DOJ and the Select Committee, that June deadline would appear quite doable for Special Counsel Smith. But considering that Trump and his GOP enablers will claim interference with the Republican nomination process were TFG to be indicted tomorrow, WHEN hardly matters. What matters will be IF and HOW HARD they come at him.

  7. Scott F. says:

    @CSK: Trump’s only defense rests on whether he believed his own lies or not. IANAL, but my understanding is that DOJ will have to prove he knew he’d lost the election in order to establish the corruption of the act. The Special Committee has shown their receipts and it appears they’ve got the evidence to show his intent.

    The Orange One is making the only play he has.

  8. CSK says:

    @Scott F.:

    Oh, absolutely, but I don’t understand how admitting you incited an insurrection, etc. is a defense against the charge that you…incited an insurrection.

  9. grumpy realist says:

    We really have to stop coddling liars under the guise of “free speech!”

    I also would like to see a further pushback against and derision of losers of elections who refuse to accept the results of said elections. Maybe a more vigorous use of libel and slander laws against sore losers who claim that there were vote shenanigans with no proof?

  10. Kathy says:

    I don’t see how belief enters into it.

    The actions Benito engaged in are illegal and treasonous whether he believed he lost and was stealing the presidency, or whether he believed he won and was trying to set things “right.”

    If you break into someone’s house because you believed they took your stuff and want to recover it, that’s breaking and entering regardless of what you believed in, or whether your belief was right or not.

  11. Kathy says:


    Well, if the Cheeto admitted he is guilty, I’d feel a shred of respect for him.

    that would be horrible.

  12. CSK says:

    He seems to be doing both.

    In a rant this morning he simultaneously claimed that:
    1. He won the election
    2. He lost the election because the FBI suppressed information about Hunter Biden’s laptop, costing him millions of votes.

    Which is it? He won but he lost. He lost but he won.

  13. daryl and his brother darryl says:

    @Scott F.:

    Trump’s only defense rests on whether he believed his own lies or not.

    IANAL either.
    But believing the election was stolen is not a defense for breaking the law.
    If I believe I’m sober, and I blow over .08, I’m still illegal.
    If I believe the bank made a grievous error with my money, so I rob them, I am still a bank robber.
    If I believe a minority is in league with the devil, and I attack them, I am still guilty of assault.

  14. Kathy says:


    “Who stole the hamberders I ate?” Donnie Benito asked with a look of baffled fury on his orange face.

  15. CSK says:


    No, no. It’s:

    “Biden stole my hamberders that I ate,” Donnie fumed, while swallowing the last bite of his hamberder.

  16. Just nutha ignint cracker says:

    @Michael Reynolds: Using Jefferson Davis as your example may have been a bad move, or it may simply make an opportunity for history to repeat itself:

    After the Civil War, former Confederate President Jefferson Davis was charged with treason in the US federal court system. However, the Chief Justice of the Supreme Court gave the Davis legal team an interesting argument for dropping the treason charge. By proving that the US had no citizens under the Constitution, Davis couldn’t be tried for treason against the US. His citizenship rights were finally restored in 1978 by President Jimmy Carter. [emphasis added]

  17. Just nutha ignint cracker says:

    @daryl and his brother darryl: But if you believe that someone is trying to kill you because he or she has battered you repeatedly, you may be acting in self-defense. The fact that said person has never touched you may not make you a liar; it may only make you deranged. I’ve not followed this very closely at all–I probably know so little that I could qualify to be on the jury–but one of the issues in the Mueller Report was that it might be hard to convict Trump of collusion with the Russians because he has so little self-awareness that it’s possible that he didn’t even recognize what he was doing as collusion. That sadme situation may be the case here, too. I’m not a mind reader like you guys are, so I can’t say, but I’m pretty confident that the DOJ and Special Investigator will run the clock out so they don’t have to FAFO.

  18. CSK says:
  19. CSK says:

    @Just nutha ignint cracker:

    Trump might not recognize collusion, or might dismiss it as something everyone does, but it’s hard to argue that he believed he won the election when he admitted multiple times that he’d lost it.

  20. Michael Reynolds says:

    @Just nutha ignint cracker:
    I was more picturing Trump fleeing the FBI dressed as a woman, as Jeff Davis is alleged to have done.

  21. daryl and his brother darryl says:

    @Just nutha ignint cracker:

    I’m not a mind reader like you guys are

    You do not have to be a mind reader.
    Self-defense, when your safety is at risk, is an animal with different stripes, I believe.
    There are several instances in the report that clearly show Trump knew he had lost.
    Indeed, he lost over 60 court cases contesting results. The single case he won, the only one, was whether an observer could stand closer than 10′.
    Maybe he could plead insanity I guess.

  22. CSK says:
  23. Joe says:

    @CSK: I think there is a more complex issue than what Trump knew and when he knew it. The question is “what is there to know?”

    Reflexively that is whether more people voted for Trump in certain states than voted for Biden in those states. But, frankly, elections are not controlled by that minutiae. They are controlled by how votes are counted and certified, which was clearly for Biden in the relevant states.

    To say that those elections were stolen is like saying the referee incorrectly called an unreviewable play. There is no such thing as an incorrect call because the call is whatever the referee says it is. You can complain for years (and sports fans d0) about calls you disagree with, but you are not a referee. The game is designed to respond to their calls, not the underlying facts. Elections are ultimately the same thing. There is no replay. Your team still lost.

  24. Stormy Dragon says:

    @Scott F.:

    IANAL, but my understanding is that DOJ will have to prove he knew he’d lost the election in order to establish the corruption of the act.

    IANAL, but I believe they only have to prove he intentionally did the criminal act, not that he necessarily knew the act was illegal.

  25. grumpy realist says:

    @Kathy: Actually, under traditional Common Law, burglary is a specific intent crime, so if you honestly believe that you are doing nothing more than retrieving your own property (and have a reasonable belief that it is your own property), then no, one of the elements of burglary (“with intent to commit a felony therein”) is lacking. There are other crimes that you could conceivably be charged with (trespassing, property damage depending on how you got in), but burglary itself wouldn’t be applicable.

  26. motopilot says:

    And then there is what Mitch McConnell said after the final J6 hearing yesterday…
    “The entire nation knows who is responsible for that day. Beyond that, I don’t have any immediate observations.”

  27. CSK says:

    Well, that’s precisely what Trump is going to do: complain for years without end.

  28. Mister Bluster says:

    I was more picturing Trump fleeing the FBI dressed as a woman, as Jeff Davis is alleged to have done.

    And Senator Kevin Keeley.

  29. Michael Reynolds says:

    History. Bah! I prefer to think Jeff went full drag queen while belting out, ‘It’s Raining Men,’ which is surprising as Paul Shaffer had not yet written the song.

  30. Michael Reynolds says:

    @grumpy realist:

    Actually, under traditional Common Law, burglary is a specific intent crime, so if you honestly believe that you are doing nothing more than retrieving your own property (and have a reasonable belief that it is your own property), then no, one of the elements of burglary (“with intent to commit a felony therein”) is lacking.

    Your honor, I honestly believed the money in that Sambo’s safe was mine.

  31. CSK says:

    @Michael Reynolds:

    Now I have to go play that on Youtube.

  32. Kathy says:


    You win.

  33. Kathy says:

    So, how rich must a person be to have intent supercede plain fact in a court of law?

    We can set Benito at the lowest point, perhaps. and Elizabeth holmes right down there. We know Harvey didn’t quite qualify.

  34. dazedandconfused says:

    @grumpy realist:

    As a disciple of Roy Cohn Trump knows the game against establishing criminal intent. Whenever possible commiting your crimes openly, loudly and proudly. He plays this gambit as well as anyone.

  35. grumpy realist says:

    @Michael Reynolds: You can be as sincere as possible in your belief that the money you’re going after is yours and that you have a “reasonable belief” in such, but that’s not going to make it so.

    A “reasonable belief” funnily turns out to be an objective standard, not a subjective standard. It’s been defined in the US court system, so that’s what get used in determining whether that element of the action is present.

  36. Rick DeMent says:

    @Just nutha ignint cracker:

    Using Jefferson Davis as your example may have been a bad move, or it may simply make an opportunity for history to repeat itself:

    This is not an entirely analogous situation. That case revolved around the question of whether or not the CSA states were actually union states in rebellion or an officially recognized separate country. That is what made the prosecution tricky under things like treason. If the CSA was a fully recognized nation that makes Davis an enemy combatant and not eligible for the crime of treason. We don’t have that dynamic here. We have a guy calming that he actually believe the election is stolen so he had a right to foment an armed insurrection to stop the legal counting of votes.

    I am also taken aback that “I believed the election was stolen” is a defense here. Really? Then why is it that ever sovereign citizen chuckle head walking out of court free as a bird. After all they really do believe that BS? That seems to me like something that a black kid form Baltimore would never get away with no matter if you could prove beyond a shadow of a doubt that he really believed the watch he took from rando white dude was his.