The likely final hearing of the House committee investigating the Jan. 6, 2021, Capitol attack had a secondary audience in mind when it laid out evidence of former President Trump’s state of mind leading up to the Capitol attack: the Department of Justice capable of charging him.
Three phrases were echoed over and over again on Thursday by the panel’s nine members, who repeatedly mentioned Trump’s motivation, intent or state of mind — a callout to elements prosecutors would need to demonstrate if they choose to pursue charges against Trump.
“I think they were trying to hand the Justice Department all the evidence on a silver platter,” said Ryan Goodman, co-director of the Reiss Center on Law and Security at the New York University School of Law.
“I do think that it’s very significant information for a Justice Department with much more powerful tools to pursue a full-blown investigation. I do think that they did a very good job of handing that off, and, in a certain sense, showing what a closing argument can look like in a powerful way.”
Rep. Liz Cheney (R-Wyo.) the committee’s vice chairwoman, noted that while it was up to the Department of Justice to make prosecutorial calls, the panel “may ultimately decide to make a series of criminal referrals” to them.
“We have sufficient information to consider criminal referrals for multiple individuals and to recommend a range of legislative proposals to guard against another Jan. 6,” she said.
While all prosecutions require demonstrating someone did something illegal, many of the crimes that would be the most likely fit for Trump’s behavior require an additional element of proving intent.
“There was considerable information presented yet again yesterday, and some new information presented that is pertinent to ongoing Justice Department investigations,” said David Laufman, who worked in leadership roles in the National Security Division in the Department of Justice (DOJ) and also represented two Capitol Police officers who testified before the Jan. 6 panel.
“Who in the White House or Trump world knew what and when — that may factor into investigative actions and possibly charging decisions on issues like seditious conspiracy, conspiracy to defraud the United States, having to do with the presentation of false slates of electors, conspiracies to obstruct an official proceeding,” Laufman added.
“Every piece of connective tissue that reaches Trump or people close to him with regard to those events is going to factor into investigative findings and recommendations by the line prosecutors on these cases.”
Amid its recap of what it laid out in its prior eight hearings, the panel offered new evidence that Trump acknowledged to aides that he lost the election and further details about the extent to which Trump allies discussed that he should claim victory before all the votes were counted.
During the hearing, the committee sought to show how much Trump was advised to claim he won the election, something he heard from confidants Roger Stone and Steve Bannon, and in a newly revealed email from conservative activist and Judicial Watch president Tom Fitton.
In the Oct. 31 email – sent four days before the election – Fitton included language encouraging Trump to say, “We had an election today — and I won.” The email also fixates on a faulty deadline, suggesting that Trump say “according to the ballots counted by the Election Day deadline.”
Election law requires counting all ballots, including absentee ballots, which are often counted after Election Day. Trump’s plan to claim victory came after he repeatedly urged his supporters to only vote in person.
Former Trump campaign manager Brad Parscale also told the committee Trump hatched plans to claim victory on election night as far back as July.
“The evidence presented yesterday was very compelling to show that the false claims of a stolen election were planned even before Election Day. That pre-meditation is very important to proving a conspiracy. The committee has certainly shown some evidence of a conspiracy to defraud the United States,” Barbara McQuade, a former U.S. Attorney, told The Hill.
Laufman said that evidence could also be used to pursue charges tied to financial crimes.
“The considerable evidence presented yesterday that Trump was told multiple times and knew, in fact, that he had lost because he made statements to others indicating he knew he had lost could factor into judgments about whether to pursue wire fraud charges in connection with the tens of millions of dollars he has raised in political donations premised on an obvious, unmistakably large lie that he had in fact won and that the election had been stolen,” he said.
Goodman said the knowledge that Trump lost the election and that then-Vice President Mike Pence did not have the power to overturn the election results could also lead prosecutors to charges for corruptly impeding a proceeding and conspiring to injure or impeded an officer, the latter of which has been used for charging members of the right-wing Proud Boys and Oath Keepers.
Not all of the evidence presented Thursday was new, and in many cases the documents and testimony fleshed out details already known or shared by the committee.
But Goodman said the additional material is all still helpful.
“For prosecutors to bring a case, it’s not like they just want one witness. So the ability to layer many of these evidentiary claims with additional witness testimony or additional pieces of documentary evidence builds a stronger and stronger case and a very meaningful way for prosecutors,” he said.
“That was another piece of the hearing that’s legally significant, but others might miss. Because they might say, ‘Well, we already know that.’ But the fact that prosecutors would have corroboration in so many different ways I think plays a very significant role in the criminal context.”
The DOJ has assembled a grand jury to hear evidence related to efforts to overturn the 2020 election.
But McQuade said prosecutors still have a large task ahead of them, particularly as they weigh whether to delve into an unprecedented case against a former president.
“It is not necessary to show that Trump planned the physical violence on the capital on January 6, only that he agreed with others to use fraud to interfere with the lawful transition of presidential power. DOJ’s task is larger, of course, than just showing some evidence,” she said.
“They have to prove it beyond a reasonable doubt, and anticipate any potential defenses. That means they need to talk with every witness who may have information about Trump’s knowledge, intent and statements, and review every document that might turn to show that he did, or did not have this intent.”
The committee took a step in that direction Thursday, voting to subpoena Trump, a move Cheney said was because the panel is “obligated to seek answers directly from the man who set this all in motion.”
The nod to the Department of Justice in the broader pitch for accountability for Trump comes from a panel whose members and staff are largely attorneys.
“On a day-to-day level [this investigation has] been conducted by former Department of Justice prosecutors. That has a lot to do with the professionalism and accomplishments of this investigation,” Laufman said.
“Among the best decisions that [Chairman] Bennie Thompson [D-Miss.] and Liz Cheney made was to facilitate the hiring of former prosecutors who, while dedicated to supporting the committee and its interests, surely, in the back of their minds, in the back of the Select Committee’s minds, are trying to ensure that everything they do could be a potential value to the Department of Justice, and from time to time to maybe gently put their finger in the department’s eyes to try to goad them into at least pursuing logical investigative steps to consider ultimately whether to bring charges against Trump.”