- The House Jan. 6 committee voted unanimously to adopt its final report, which includes criminal referrals against former President Donald Trump.
- The Justice Department is not legally bound by the referrals. Only federal prosecutors can decide whether to pursue charges against Trump and his allies.
- In an executive summary of the report, released today, the committee also referred four Republicans to the House Ethics Committee, including House Minority Leader Kevin McCarthy.
- The committee's final report is expected to be released in full on Wednesday.
After Jan. 6 committee's closing statement, all eyes on DOJ
Will Donald Trump face criminal prosecution?
That’s still an open question after the Jan. 6 committee’s historic final meeting today, which concluded with unanimous criminal referrals to the Department of Justice against Trump and others.
Whatever the DOJ decides — and, to be clear, it’s not legally bound by these referrals — it’s worth pausing for a moment over the fact that the American people, through our representatives, have declared that a man we elected to the presidency has engaged in insurrection against us.
But wait, there’s more. We still have the final report to read on Wednesday, with all it will entail about Trump and others and the infamous Capitol attack that prompted the committee to form. As the committee’s introductory materials released today show, these members of Congress have laid down a marker for the nation to understand the circumstances that led to the attack on American democracy.
So we’ve seen the Jan. 6 committee make its closing argument. It remains to be seen whether the DOJ makes an opening one.
Trump’s fateful call to the RNC
In one of the criminal referrals announced today, the “conspiracy to make a false statement,” the committee’s report detailed the elements of that criminal statute and then described, generally, the efforts to have fake slates of Trump electors organized in states won by Joe Biden and submitted to the National Archives and Congress.
In showing how Trump “personally participated” in the fake electors scheme, the committee’s report highlighted a post-election call Trump and John Eastman had with Ronna McDaniel, the chair of the Republican National Committee.
McDaniel has testified that Trump phoned her in a call placed by the White House switchboard — testimony previously discussed by the committee. Trump began the call, McDaniel testified, introduced Eastman, and turned it over to Eastman to describe the “importance of the RNC helping the campaign gather these contingent electors” in case they were needed.
Today, the committee used that “overt act” to anchor its “false statement” conspiracy criminal referral against the former president.
Here's the full list of witnesses seen during Jan. 6 hearings
Toward the end of the summary released today, the Jan. 6 committee reminded readers once again that its work was not, in fact, a partisan hit job from Democrats. “In its ten hearings or business meetings, the Select Committee called live testimony or played video for several dozen witnesses, the vast majority of whom were Republicans,” according to the summary.
The committee then proceeded to provide a full list of those witnesses:
Kayleigh McEnany gets a major side-eye from the Jan. 6 committee
It wasn’t just Ivanka Trump that got an awkward shoutout in the Jan. 6 committee's executive summary. Former Trump White House press secretary Kayleigh McEnany was also referred to in this section: “Other witnesses, including certain witnesses from the Trump White House, displayed a lack of full recollection of certain issues, or were not otherwise as frank or direct as” former White House counsel Pat Cipollone.
The report notes that McEnany gave her deposition early in the process and that “a segment of McEnany’s testimony seemed evasive, as if she was testifying from pre-prepared talking points.”
“For example, McEnany disputed suggestions that President Trump was resistant to condemning the violence and urging the crowd at the Capitol to act peacefully when they crafted his tweet at 2:38 p.m. on January 6th,” the report reads. “Yet one of her deputies, Sarah Matthews, told the Select Committee that McEnany informed her otherwise.” It goes on to invite the public “to compare McEnany’s testimony with the testimony of Pat Cipollone, Sarah Matthews, Judd Deere, and others.”
Why the committee summary begins with Trump’s foot soldiers
The committee’s introductory materials today don’t start with Trump, who is the principal focus of the report. Rather, they begin with the admissions of several participants in the Jan. 6 attack, many of whom have “pleaded guilty, been convicted, or await trial for crimes related to their actions that day.”
Why does the committee start with them? Because, as the committee writes, “hundreds” of participants have acknowledged “exactly what provoked them to travel to Washington, and to engage in violence”: Trump’s own words.
And those words — and the unlawful actions they incited — are at the heart of one of at least three criminal violations for which the committee is expected to refer Trump: incitement of an insurrection. The statute punishes “whoever incites ... any rebellion or insurrection against the authority of the United States or the law thereof” with a maximum prison term of 10 years — and a permanent disqualification from “holding any office under the United States.”
But the legal bar for such incitement is high, especially because of the First Amendment’s protections of political speech. Any prosecution of Trump under the insurrection statute would have to prove that his words were likely to incite “imminent unlawful action.”
And that’s why the committee starts with the insurrectionists themselves. Hundreds of them have already been convicted — through guilty pleas or jury verdicts — for what amounts to an unlawful response to Trump’s invitation to come to D.C. and once there, march to the Capitol to “fight like hell.” We might bemoan how much the Department of Justice’s investigation of Trump trails behind its prosecution of hundreds of his foot soldiers — but in this case, delay is the friend of evidence.
Trump, other GOPers respond to Jan. 6 committee referrals
"...But Liz Chaney lost by a record 40 points!"
Not the strongest rebuttal from Trump, who posted those nine words on his social media site Truth Social after the Jan. 6 committee wrapped up its meeting. (Not to mention, he spelled the vice chair's last name wrong.)
Meanwhile, Reps. Jim Jordan and Scott Perry of Pennsylvania — two of the four House Republicans referred to the House Ethics Committee by the Jan. 6 committee — tried to downplay and denigrate the panel's findings.
“More games from a petulant and soon-to-be defunct kangaroo court desperate for revenge and struggling to get out from under the weight of its own irrelevancy," Jay Ostrich, a spokesperson for Perry, said in a statement.
Jordan called the referrals "just another partisan and political stunt."
We're just weeks away from the GOP retaking the majority in the House, which will surely impact whether the ethics committee pursues the referrals.
Plot to overturn election was product of many schemes
In January 2022, when "The Rachel Maddow Show" revealed the full breadth of the fake elector scheme, it was “a new element that we did not previously understand about the way Trump world maneuvered to ... try and stop the transfer of power.”
But, at that time, we still thought about the lead-up to Jan. 6 as a handful of attempted coups, each tried and exhausted in succession before the beginning of the next.
Now, as the committee’s summary details, putting aside the rally itself and Trump’s conduct on the day of Jan. 6, the plot to steal the election was a messy Venn Diagram of overlapping schemes, each with its own cast of characters. But in the center of the web? One man: Donald Trump.
According to the summary:
- It was Trump who pressured Pence “to refuse to count electoral votes” on Jan. 6.
- It was Trump who sought to corrupt the Justice Department by asking senior leaders “to make purposely false statements” and when they refused, by attempting to install Jeff Clark, who was more than willing to disseminate those falsehoods, as Attorney General.
- It was Trump who pressured “State officials and legislators to change the results of the election in their States,” an aspect of the scheme at which Special Counsel Jack Smith’s recent flurry of subpoenas is aimed.
- It was Trump who oversaw the fake elector scheme.
- It was Trump who galvanized the congressional efforts to object to the legitimate slates of electors.
- It was Trump who galvanized the congressional efforts to object to the legitimate slates of electors.
For those counting at home, that’s six different schemes, all of which were helmed by a single former president.
Where the committee may be going out on a limb
For the most part, the Jan. 6 committee’s final report and its referral of Trump and a handful of his associates to the Justice Department for criminal prosecution are on solid ground. The evidence the committee presented to the public suggests Trump did attempt to obstruct the committee’s proceedings and he did conspire to defraud the government with falsified evidence of massive voter fraud.
If the committee is out on a limb, it is in referring Trump for prosecution on the grounds that he deliberately incited the violence that occurred on Jan. 6.
In its final report, the committee acknowledges that the bar for securing a criminal conviction of someone accused of engaging in incitement to violence is very high. It maintains, however, that this threshold has been met.
“A Federal court has already concluded that President Trump’s statements during his Ellipse speech were ‘plausibly words of incitement not protected by the First Amendment,’” the report's executive summary states.
That was the conclusion reached by Judge Amit Mehta in a civil trail — Thompson v. Trump — in which a variety of plaintiffs argued Trump and his “Kraken” legal team were liable for the injuries they suffered on Jan. 6. Judge Mehta found that Trump’s agitation met the standards for incitement recognized by the court in Brandenburg v. Ohio. But Mehta’s decision includes a variety of inferences about what the president was likely to know about his supporters ahead of Jan. 6. Indeed, as he wrote, “it is reasonable to infer that he would have known that some in the audience were prepared for violence.”
There’s no question that Trump should have known that his supporters were prepped and ready for violence. Likewise, Trump should have understood that his heated rhetoric could have the potential to radicalize his supporters who are most susceptible to suggestion. But can prosecutors prove to the satisfaction of a jury in a criminal trial that Trump’s deliberate intention was to get his supporters to commit violence? Moreover, would the president have any reasonable expectation that a display of mass violence would produce the political outcome he desired (delaying the certification of the 2020 election results)? After all, the 2020 election results were certified, the mass violence those proceedings inspired notwithstanding.
The evidentiary threshold required to criminalize free speech and expression is high for a reason. Unless the Justice Department has evidence that the president expressed his deliberate intention to provoke a violent reaction in order to achieve some specific objective — evidence the committee did not present to the public — it seems unlikely the Justice Department would gamble on a prosecution as risky as that.
READ: Newly released summary of Jan. 6 committee final report
At the close of its meeting today, the House Jan. 6 committee released introductory material, including an executive summary, of its final report, which is expected to be released in its entirety on Wednesday.
Read the full text of the summary below.
Is criminality enough to stop the steal?
The Jan. 6 committee has spent seven months making a clear and compelling case to the American public about democracy being under attack, fueled by Trump’s “big lie” that the 2020 presidential election was stolen.
The televised and widely discussed hearings ran through an entire midterm election season, yet somehow about 300 avowed elected deniers ended up on November’s ballot for congressional or statewide office — and more than half won.
In material provided to the public after today’s meeting, members of the Jan. 6 committee said they “understood that millions of Americans still lack the information necessary to understand and evaluate” that more than 60 judicial rulings were made in support of the legitimacy of the 2020 election process. The fog of election season made it hard to cut through the chatter with evidence that Trump’s statements were connected to the insurrection. The committee said for that reason, “hearings featured a number of President Trump’s inner circle” and nearly 50 Republicans attesting to the fact that President Biden was duly elected.
The committee intends for its work to lead to accountability for Trump and others. But undoing the harm done by those who value personal power above all and eliminating the brain worms created by hyperpartisan messaging is a civic renewal project that will outlast Trump and this committee’s work.
Highlight reel shows key evidence collected by committee
How the courts helped do Trump in
One of the many striking parts of the committee’s introductory materials is the reliance on the courts to back up its claims. Even though it’s a political body, the committee is relying on legal process to make a more convincing case.
For example, in explaining the story of “The Big Lie,” the committee notes that “judges across the country specifically rejected the allegations of fraud and irregularities being advanced by the Trump team and their allies.”
While Trump might have thought that judges — including the Supreme Court majority he helped create — would help him overthrow the election, that not only wasn’t the case, but the courts are now being used by the committee to help tell the story of how Trump tried to overthrow the government and why he and others may be held criminally liable for being so.
WATCH: Jan. 6 committee's final public meeting in full
The Secret Service confiscated an arsenal from Trump supporters
No one who was privy to the evidence the Jan. 6 committee has presented to the public could have been surprised that the day’s events descended into violence.
The committee uncovered a Jan. 4 intelligence summary detailing calls from the president’s supporters to “occupy federal buildings” and preliminary plans to “invade the Capitol building.” A U.S. Secret Service memo ahead of the president’s rally on the Ellipse quotes one tipster begging the agency to act proactively because “their plan is to literally kill people.” The memo alleged that Trump “supporters have a plan to occupy Capitol Hill.”
Now, according to a document supplementing introductory material to the committee’s final report, we’re learning about the degree to which even the president’s rank-and-file supporters were ready for a fight that day.
The Secret Service provided the committee with a list of weapons they confiscated from the 28,000 Trump backers who watched the president’s speech and submitted to a search. Those items included “242 cannisters of pepper spray, 269 knives or blades, 18 brass knuckles, 18 tasers, 6 pieces of body armor, 3 gas masks, 30 batons or blunt instruments, and 17 miscellaneous items like scissors, needles, or screwdrivers.” The document details the additional confiscation of firearms by District of Columbia police and the National Park Service from thousands of would-be rally attendees who refused to go through magnetometers.
As Cassidy Hutchinson, aide to White House Chief of Staff Mark Meadows, testified, Trump urged the Secret Service to remove those magnetometers because, she said in the former president’s voice, “They’re not here to hurt me.” If the president’s security detail had listened to their boss, the mob that laid siege to the Capitol would have been much more well armed.
Did Trump unlawfully pressure witnesses by paying for their lawyers?
It shows up on page 148 of the committee’s executive summary with a bang: the concern that lawyers for witnesses in the investigation whose fees are being paid by Save America, Trump’s political action committee, “have specific incentives to defend President Trump rather than zealously represent their own clients.” The committee also reveals it has shared related, but unspecified, information with both the DOJ and the Fulton County District Attorney.
The committee doesn’t name names. And both given the number of Save America’s disbursements for “legal consulting” — 117 payments between June 2021 and October 2022 — and given that several lawyers paid by Save America each represent several witnesses across different Trump investigations, it is difficult to pinpoint who the committee is referring to.
Moreover, some lawyers paid by Save America represent Trump himself too. For example, Tim Parlatore of Parlatore Law Group has represented Giuliani affiliate Bernard Kerik, former Pennsylvania state legislator Doug Mastriano as well as Trump himself; Evan Corcoran, who has been involved in representing Trump in the Mar-a-Lago records investigation, also represented Steve Bannon at his contempt of Congress trial; John Rowley has not only represented Trump, but also Trump campaign lawyer Cleta Mitchell, former White House aide Stephen Miller, and Rep. Scott Perry.
So who is the committee talking about exactly? It’s not clear — yet — but as Rachel Maddow says, watch this space.
What about seditious conspiracy?
The Jan. 6 committee voted unanimously to refer several criminal charges for Trump to the Department of Justice: obstructing an official proceeding, conspiracy to defraud the United States, conspiring to make false statements, and insurrection.
Notably, in the introductory materials to its report released after the meeting, the committee also listed seditious conspiracy as a crime that Trump may have committed. But that potential crime wasn’t brought up today for referral.
The DOJ certainly has enough to investigate as it is — and the committee’s referrals aren’t binding, anyway — but it will be interesting to see whether seditious conspiracy is among the charges against the former president if federal prosecutors bring any.
Four Republicans to be referred to House Ethics Committee
Alongside the criminal referrals to the DOJ, the Jan. 6 committee members also voted to send four of their colleagues to the House Ethics Committee for sanction. Each of the four — House Minority Leader Kevin McCarthy, Ohio’s Jim Jordan, Pennsylvania’s Scott Perry and Arizona’s Andy Biggs — received subpoenas from the committee to testify but opted to shrug them off. (Some, like Biggs, went out of their way to denigrate the investigation in the process.)
In the introductory material of its final report, which is due to be released in full on Wednesday, the panel explained why this step is necessary: “If left unpunished, such behavior undermines Congress’s longstanding power to investigate in support of its lawmaking authority and suggests that Members of Congress may disregard legal obligations that apply to ordinary citizens."
I have a lot of thoughts on the matter, which I’ll save for a more expansive medium, but it’s worth noting that McCarthy in particular is the highest-ranking member to be referred to the House Ethics Committee since Speaker Newt Gingrich, R-Ga., in the late 1990s.
The GOP political strategies that made the Jan. 6 riot possible
Trump’s effort to overturn the election touched “every part of the federal system” from his own vice president to state officials to local judges, said committee member Rep. Pete Aguilar.
At “every instance” these officials pushed back, so Trump turned to Twitter to “galvanize activists,” including domestic extremist groups, noted Rep. Stephanie Murphy.
But let’s be clear what made all this chaos possible.
A Republican effort to sustain minority rule through gerrymandering diluted Black and Democratic votes, creating a polarized environment where minority voters can go unheard and extreme partisan views can be heavily featured in the halls of power.
Stacking the federal bench with conservatives while denying appointments from Democratic administrations gave Republicans key partners as they pushed to advance partisan ideologies, instead of ruling solely from precedent and rule of law.
Republicans have blocked sensible gun control laws in the name of Second Amendment rights, leading to our country having more guns than people.
And by feeding the public messages of fear, and that the country is under attack from people within our communities, the GOP continues to fuel the idea that violence is necessary to protect our way of life.
Trump took advantage of these existing flaws for his own gain. The committee’s work may be done, but the conditions that prompted the insurrection still remain.
Trump insurrection referral is arguably the most powerful
The Jan. 6 committee’s criminal referral for insurrection is arguably the most powerful and provocative. So it’s worth looking at what the relevant statute says:
"Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States."
That last part — "shall be incapable of holding any office under the United States" — raises the stakes. It also raises potential legal challenges over whether a potential conviction would truly bar Trump from becoming president again. That’s on top of the First Amendment argument that the former president might raise against the charge itself, though, as the committee noted, a judge already wrote that statements during Trump’s Ellipse speech were “plausibly words of incitement not protected by the First Amendment.”
Committee: Ivanka Trump 'not as forthcoming' as other witnesses
In its newly released introductory materials, the committee also called out former senior White House adviser Ivanka Trump, noting that her testimony was “not as forthcoming” as others’ about her father’s conduct.
The committee noted that Ivanka’s chief of staff Julie Radford had a “more specific recollection” for example, when it came to why Ivanka attended her father’s Jan. 6 rally speech. Radford told the committee that Ivanka went to calm Trump down after he called Pence “the ‘p’ word.”
When the committee asked Ivanka if there was any particular words she recalled her father using with Pence, she said no.
Why Giuliani’s deposition to Jan. 6 committee could cause him financial pain
The Jan. 6 committee's introductory material to the final report, which was released to the public after the meeting ending, revealed a lot of interesting details.
In addition to disciplinary proceedings before various state bars and his potential criminal exposure, Rudy Giuliani has been named as a defendant in an ongoing defamation suit by Dominion Voting Systems. The company makes election hardware and software that many Trump allies, including Giuliani, claimed was used fraudulently to manipulate election results in 2020. Dominion has also sued others, including lawyer Sidney Powell and My Pillow CEO Mike Lindell, but it seeks more than $1 billion from Giuliani alone.
A federal judge has already refused to dismiss Dominion’s lawsuit against Giuliani. And judging from an excerpt from Giuliani’s deposition to the committee, Giuliani’s defense against Dominion’s defamation claim just got harder. In proving defamation, a plaintiff must show, among other elements that the defendant made a false statement of fact and was at least negligent, if not reckless or knowing, in doing so.
Despite many outlandish claims about Dominion on television and in other public fora, however, by May 2022, when Giuliani testified before the committee, he admitted, “I do not think the machines stole the election.”
Yes, Rudy could have had a change of heart between 2020, when he blanketed the airwaves with his unsupported claims of fraud, and May 2022, when he was deposed before the committee. Surely, his lawyers will attempt to explain the discrepancy between his allegedly defamatory statements and what he testified to more recently as evidence of Rudy’s evolution — and not a reflection of Rudy’s understanding in 2020.
But the admission — which the committee cites as evidence of Giuliani’s knowledge that the “big lie” was, in fact, a lie — likely also has some Dominion lawyers celebrating their unexpected luck today.
Trump knew there could be violence
If anyone needed further evidence that Trump did not want to do anything that might take the national temperature down and cool the passions among his supporters, even if those passions increased the potential for violence, former longtime Trump adviser Hope Hicks provided some.
Hicks provided records of her text messages to the committee, including an exchange with Hogan Gidley, who served as a deputy press secretary in Trump’s White House:
The “he” to whom Hicks referred in this text exchange was Trump adviser Eric Herschmann.
“Mr. Herschmann said that he had made the same, you know, recommendation directly to the president,” Hicks told congressional investigators during her taped deposition. Hicks added that Trump “refused” when Herschmann also asked Trump to issue a perfunctory statement to his supporters imploring them to remain peaceful.
The former president’s supporters have long maintained that neither Trump nor anyone else could have foreseen how the events of Jan. 6 would explode into violence. True enough, but nor did the president take any steps—even rising to the level of a mere gesture on social media — to pre-empt the prospect of violence as long as the violence would be done on his behalf. He most certainly knew that his supporters could become violent if only because his advisers repeatedly informed him of that fact.
Jamie Raskin is nailing his Oversight Committee audition
Rep. Jamie Raskin, D-Md., has been a major player on the Jan. 6 committee after serving as an impeachment manager for Trump’s second Senate trial. As a constitutional law expert, he was particularly well suited to be on the subcommittee related to potential criminal referrals to the Department of Justice.
Raskin is also reportedly in the running to jump seniority to serve as the ranking member on the House Oversight Committee in the next Congress. According to Axios, Raskin was the clear winner in a Democratic Steering Committee vote on the matter last week. “Mr. Raskin, in the last couple of years, has been very much the face of the party, and very much willing to engage Republicans in a very effective way,” Rep. Dan Kildee, D-Mich., the co-chair of the Steering Committee, told Axios.
Based on his performance at today’s hearing, it’s clear that Raskin will be primed to push back hard on any bogus investigations that the GOP spins up over the next two years.
It's official: Jan. 6 committee to make Trump criminal referrals
The House Jan. 6 committee has decided to recommend the Justice Department pursue criminal charges against former President Donald Trump, including obstructing an official proceeding, conspiracy to defraud the United States, conspiring to make false statements, and insurrection.
The committee just voted unanimously to adopt its final report, which includes the referrals against Trump.
Committee tells of job offers dangled to witnesses
In Rep. Zoe Lofgren’s opening statement, the California Democrat said the committee had obtained evidence that funds raised by Trump were used to hire lawyers for witnesses — and, in newly revealed information, to “provide or offer employment to witnesses.”
Lofgren said that when a witness inquired about who was funding the payment of lawyers, the female witness was told that they were sharing that information.
“We’re not telling people where funding was coming from right now,” Zofgren said the lawyer told the witness.
Lofgren said that employment offers were dangled to witnesses. Zofgren said one witness was told of a job offer that would make her “financially very comfortable” by an entity connected to Trump. The offer disappeared after the direction of a female witness’s testimony became known.
Trump shrugged off white nationalism. Then Jan. 6 happened.
In 2019, when asked directly whether he believed white nationalism was a rising threat, Trump casually said “I don’t really,” despite the mounting evidence from experts that far-right extremism is rising and becoming more deadly around the world. Trump had already ended community and law enforcement programs to curb domestic extremism.
Six months later, the Trump administration’s Department of Homeland Security issued a report with this key finding: Dor the first time since the agency was created post 9/11, white nationalist terror is the greatest domestic threat.
“The continuing menace of racially based violent extremism, particularly white supremacist extremism, is an abhorrent affront to our nation, the struggle and unity of its diverse population, and the core values of both our society and our department,” said then-acting DHS Secterary Kevin McAleenan.
More than 850 people have been arrested for the attack on the Capitol, many of them citing an implicit invitation from Trump to come to D.C. Now, as the Jan. 6 committee wraps up its work and issues its referrals, Trump — the same person who denied the threat and continues to deny his loss — openly courts white nationalists and antisemites over lunch.
This is what makes accountability so necessary. Our democracy is under threat from people who will use violence against the government and minorities.
Hope Hicks urged Trump to consider his legacy. He didn’t care.
Rep. Zoe Lofgren, D-Calif., presented new information that the committee had gathered since its last hearing, including new testimony from longtime Trump adviser Hope Hicks. Hicks was one of several major aides who tried to convince the then-president that there was no evidence of the widespread electoral fraud he was alleging.
Hicks, in a video of her testimony, told the committee that she had told Trump she was “becoming increasingly concerned we were damaging his legacy” with his fraud claims. “He said something along the lines of ‘Nobody will care about my legacy if I lose, so that won’t matter,’” Hicks said. “‘The only thing that matters is winning.’”
That totally tracks with Trump’s behavior over the years, with his fear of being seen as a “loser” and willingness to do whatever it takes to come out on top.
An impeachment conviction wouldn’t have prevented referrals
Let’s be clear: Senate Republicans failed the country when they refused to convict Trump in his second impeachment trial, which followed Jan. 6, 2021. If they had, Congress would have acted in its role as a check on the presidency, holding Trump accountable and barring him from another presidential run.
But impeachment is a political tool and the Senate failed to convict in a political trial. Even if they had found Trump guilty, that would have been different from a criminal trial. So in this alternate universe, the Jan. 6 committee would most likely also find itself voting on the criminal referrals we’re seeing today.
An open-and-shut case
In her opening statement today, Rep. Liz Cheney smartly focused on the most serious of the allegations against Trump by devoting her attention not to his actions but his inaction.
Prior to this committee’s proceedings, it had been reported but not confirmed that Trump sat back and watched the riots as they unfolded. The committee’s investigation established via the testimony of people in the room with Trump what he was doing as a mob ransacked the Capitol: nothing.
The committee learned that Trump resisted appeals from Republican lawmakers, his staff and even his own family to speak out against the violence as it was ongoing. We learned via his chief of staff’s aides that the president impassively watched the violence on television. According to Trump’s White House counsel, the president made no calls to the secretary of defense, attorney general or head of homeland security during the riots. Indeed, it seems that it was left to the vice president to unilaterally assume the powers of the presidency, summon a police and military response to the riots, and relieve the pressure that the mob was putting on Congress.
The events leading up to and during the Jan. 6 riots involve a lot of moving parts, but Trump’s most condemnable conduct is not complicated. If he was surprised or repulsed by the violence his post-election agitation brought down on Congress, he didn’t act like it. Instead, through inaction, Trump abdicated his role as commander-in-chief of the armed forces, protector and defender of the constitution, and chief executor of the nation’s laws. As Cheney asserted, “he is unfit for any office.” Case closed.
Thompson says referrals headed to DOJ 'shortly' after meeting
A Christmas present for nerds: All the Jan. 6 documents
Chair Bennie Thompson confirmed early in today’s meeting that the committee will be publishing almost all of the “non-sensitive” material gathered over the course of this investigation by “the end of the year.” That means that transcripts from the vast majority of the many, many interviews that the committee conducted will be available for public scrutiny. (Some redactions will obscure the names and identities of sources who were guaranteed anonymity to testify.)
This pending drop is a gift for history nerds and other Americans who love a primary source document. It will also be a shield against any House Republican investigation of the committee’s work.
The Jan. 6 committee mattered
The committee conducted eight public hearings over the course of the summer, uncovering a variety of disturbing details about former President Donald Trump’s conduct leading up to and during the riots on Capitol Hill.
But even as those hearings were ongoing, many were eager to declare the proceedings a dud. In July, only 9% of Americans told ABC News/Ipsos pollsters that they were watching the hearings “very closely,” while more than a third of respondents said they were paying almost no attention to the investigation. One month later, Monmouth University found that the number of Americans who believe Trump was “directly responsible” for the day’s events is roughly on par with the number of Americans who tell pollsters Joe Biden was not legitimately elected. That poll found most Americans just want the thing to end.
This polling data might have led lawmakers and candidates to assume that the hearings did not matter, and Trump’s conduct on and around Jan. 6 was of no material interest to most voters. But, as FiveThirtyEight analysts Geoffrey Skelley and Holly Fuong found in their polling series, voters ranked “political extremism” as the second-most salient issue in the 2022 midterm elections, behind only “inflation and rising costs.” Republican candidates lost self-described “moderate” voters by double digits in November. Even independent voters, who tend to break toward the opposition party in a president’s first midterm election, sided with the party in power.
Voters would not have had the opportunity to deliver a rebuke to the Republican candidates who wore their extremism and 2020 election denial on their sleeves if Republican primary voters hadn’t convinced themselves that voters were ambivalent about the conduct that culminated in violence on Jan. 6.
The president’s behavior necessitated this committee’s existence. It is an outgrowth of his disregard for constitutional propriety, and it has contributed to the factors that convinced a critical mass of voters to mete out a third consecutive rebuke to candidates mimicking Trump and Trumpism.
Note to DOJ: Other countries paved the way
The United States is hardly alone in investigating its former leader for possible crimes while in office. Instead of hand-wringing, we need officials ready and willing to do the work to restore faith in the power of the people and rule of law.
And we know accountability is doable. Here are three recent examples from countries where elected officials were charged with crimes committed while in office. None of these countries erupted into civil war as a result.
France has twice convicted former prime ministers for crimes committed while in office: Jacques Chirac in 2011 for embezzling public funds and Nicolas Sarkozy in 2021 for corruption after trying to bribe a judge. Chirac “served” a two-year suspended sentence, while Sarkozy is still appealing.
South Korea’s former President Park Geun-hye was forced from office in 2018 and served five years in prison for abuse of power and corruption. Former Prime Minister Han Myeong-Sook served two years for bribery after her term ended.
Israel’s current and longest serving prime minister, Benjamin Netanyahu, was indicted by his own attorney general for bribery, fraud and breach of trust. While he was removed from office when his government dissolved, Netanyahu’s ongoing legal woes have not stopped him from securing another term as the country’s leader.
This is America’s moment to prove it believes in its own system of rule of law, too.
Remember that the committee is working on a stopwatch
While the Jan. 6 committee is preparing to hold its final meeting today, questions about unresolved issues — particularly regarding lesser figures — must be considered in context.
While the committee knew that there was a good chance that Democrats would lose the House majority during the midterm elections, prompting them to finish the big tasks — think, Trump — the bottom-line reality is that there are threads that were not fully tracked down, questions that will be left unanswered.
The committee acknowledged as much by withdrawing several subpoena requests in recent weeks.
Republicans back off investigating Jan. 6 committee
As recently as the end of November, the incoming House Republican majority was promising to probe of the work of the Jan. 6 committee. On Nov. 30, House Minority Leader Kevin McCarthy, R-Calif., warned committee Chair Bennie Thompson, D-Miss. “to preserve all records and transcripts of testimony taken during your investigation.” (Never mind that the committee was already required to do so.)
The idea was to pair this probe with a separate investigation seeking to all but blame the Jan. 6 attacks on lapses in Capitol security. But last week, Rep. James Comer, incoming chairman of the House Oversight Committee, told NBC’s Sahil Kapur that Republicans are already breaking this promise.
Sure, that’s a possible excuse. Or maybe the GOP decided that what the committee has found, no matter how they spin it, just won’t make Trump — or Republicans — look good.
America’s accountability Venn diagram
This idea that functioning democracies don’t frivolously target former leaders and political rivals is generally true — the rule of law is about removing personal pettiness from politics. But the United States, and former diplomats like myself, have also championed the idea that all people are equal in the eyes of the law — including former leaders and political rivals.
By preparing to recommend criminal referrals — including, potentially, for a former U.S. president — the Jan. 6 committee highlights the daylight between those two ideals. And proving they do not inherently contradict each other.
Instead of living in a lofty land of norms and daydreams about what the United States should be, the bipartisan committee is recognizing the reality of what the United States is — a country where democracy has been challenged both systemically and violently, egged on by an elected leader who still refuses to acknowledge the majority of the American people did not vote for him.
It’s a harsh truth. But if we want to get back to being Reagan’s “shining city on the hill,” then Congress must act on any criminal violations by the former executive.
Arizona's GOP House speaker: 'I'm comfortable' if Trump charged
Jan. 6 spurs seditious conspiracy convictions for Oath Keepers
Stewart Rhodes, the founder of the extremist group, and Kelly Meggs could each receive up to 20 years in prison. Three other members of the group were acquitted of seditious conspiracy, but all five defendants were convicted of obstruction of an official proceeding and aiding and abetting for their actions on Jan. 6.
Perhaps the most striking evidence at the trial — the most notable sedition proceedings in the U.S. since World War II — came when prosecutors played audio of Rhodes continuing to espouse violence even after the attack.
“We should have brought rifles. We could have fixed it right then and there,” Rhodes said during a Jan. 10, 2021, meeting with a man he believed would be able to pass along a message to Trump, adding that he would like to “hang” Pelosi.
What’s notable about the committee meeting room today
The House Jan. 6 committee will conduct its final public meeting today in a room that was recently renamed for House Speaker Nancy Pelosi.
On Wednesday, former GOP House Speaker John Boehner paid tribute to Pelosi as her official portrait at the U.S. Capitol was unveiled. The Cannon Caucus Room, where the Jan. 6 hearings have been held and today’s meeting will take place, was renamed the Speaker Nancy Pelosi Caucus Room.
It's a fitting place for the committee to wrap up its business regarding an investigation into the Capitol riot. As the violence unfolded that day, some pro-Trump rioters called for Pelosi to be killed. Some invaded her office, putting their feet on her desk or walking away with her lectern.
By the numbers: A look at the Jan. 6 committee's investigation
The House Jan. 6 committee has sifted through mountains of evidence over the last nearly 18 months since it launched its investigation. Here's a look at the probe by the numbers, via NBC News:
- Over 1,200 witness interviews and depositions
- Over 10,000 tips to the tip line
- Hundreds of thousands of documents examined
- More than 1 million pages of records
- More than 100 subpoenas issued
Will ‘unsolved mysteries’ of hearings past be resolved today?
As we know, the Jan. 6 committee is expected to issue referrals — potentially against Trump, lawyer John Eastman and others — to the DOJ for criminal prosecution.
And while the nature and number of those referrals will unquestionably be the big news, I remain focused on a variety of smaller, “unsolved mysteries” of Jan. 6 that could inform the strength of those charges, if brought by the DOJ.
For me, the most prominent — and potentially troubling — of these unresolved issues include these three:
- The committee has insinuated that certain Secret Service and White House personnel have disputed some of the most chilling aspects of Cassidy Hutchinson’s account of Jan. 6. But did those people — a group that reportedly includes former White House deputy chief of staff Tony Ornato; Bobby Engel, who was the lead agent on Trump’s detail on Jan. 6; and Anthony Gugliemi, then-spokesperson for the Secret Service — actually dispute her story under oath? And if so, what documents in the committee’s possession suggest that someone involved is not telling the truth, as committee member Zoe Lofgren has suggested?
- The committee’s tick-tock of how Trump spent Jan. 6 appears to suggest the first person he spoke to upon returning from the Ellipse on Jan. 6 and the person who informed him the Capitol had been breached was a White House valet. That same person was apparently the last person to speak with Trump that evening, when, upon gathering his things from the dining room to retire to the residence, Trump commented that Pence “let [him] down.” The committee has never named that person, whose testimony could be important to show what Trump knew and when as well as his lack of remorse. Will they name him or her now?
- What role did Rep. Scott Perry, R-Penn., really play in the various schemes to overturn the election? Perry, a member of the House Freedom Caucus, initially appeared to be one among many overeager, sycophantic House Republicans who texted ideas to then-White House chief of staff Mark Meadows. But over the last year, we’ve learned Perry championed DOJ civil appeals lawyer — and almost attorney general — Jeff Clark to Meadows and Trump. We also know now that Perry was communicating with at least two lawyers — Ken Klukowski, installed as an aide to Clark in mid-December 2020, and Eastman — integral in developing and/or socializing the legal theories for overriding election results. Klukowski, according to his lawyers, cooperated with the committee. Eastman did not, but lost multiple rounds of litigation that required that he turn over hundreds of emails he claimed were privileged. Increasingly, Perry looks not like a fringe character, but a critical connector between legal minds outside the campaign’s hired guns and an increasingly desperate Trump. Will he be among those for whom the committee recommends prosecution, if not other disciplinary action?
In short, today could be a day in which those we’ve seen so far as minor guest stars, some even unnamed, suddenly become main characters.
Don't ignore possible ethics, campaign finance violation referrals
The committee has investigated right-wing lawyers found to have used baseless legal theories to push Trump’s 2020 election lies. And they’ve probed right-wing fundraising efforts premised on those same lies.
And, because we know the report could potentially include referrals to the bar about legal misconduct, and possible referrals to the Federal Election Commission about campaign finance violations, there’s potential for non-criminal referrals to shock the conservative movement and discourage some of the openly illiberal behavior we’ve seen from the GOP since Trump’s rise.
Flashback: McConnell, McCarthy snubbed by Jan. 6 officers
U.S. Capitol Police Officer Brian Sicknick was injured while “physically engaging” with Jan. 6 protesters and collapsed shortly afterward, according to Capitol Police. He died of natural causes the next day after suffering two strokes. Sicknick was 42.
Two weeks ago, lawmakers held a Congressional Gold Medal ceremony to honor police officers who responded to the Capitol attack. At the gathering, Sicknick’s mother and father began to shake hands with congressional leaders — but walked right by the top two Republicans, Sen. Mitch McConnell and Rep. Kevin McCarthy.
Kevin Sicknick, the late officer’s brother, said it was by design.
“[The GOP leaders] continue to perpetrate the big lie, or at least not denounce it, which is basically the same thing, and they refuse to condemn Donald Trump,” he told NBC News.
Watch the Sicknick family’s protest below.
Lawyer John Eastman is likely among the referrals to DOJ
NBC News is reporting that among the names the Jan. 6 committee will be referring to the Department of Justice for criminal investigation is John Eastman, whose discredited legal theories were central to the plot to overturn the election.
“There is significant evidence to the fact that Eastman was part of this conspiracy,” Rep. Jamie Raskin, D-Md., was heard saying during last night’s rehearsal, per NBC News, and additionally “it is now clear that this conspiracy involved many more people other than Dr. Eastman.” As we get closer to this afternoon’s meeting, we could learn more about just whom Raskin was referring to — and whether they’ll also be getting a referral to DOJ.
Trump’s intent will be at the heart of any referrals
Through testimony and documentary evidence, the committee successfully made the case that Trump did not haphazardly and impulsively encourage an unruly mob, but knowingly organized an armed insurrection. That conclusion about Trump’s intentions will shape the recommendations they’ll make to the Justice Department, which aren’t binding but do have symbolic and political value.
Here’s what NBC News learned at yesterday’s ‘rehearsal’
Every good performance needs a bit of rehearsal, and the extremely well-produced Jan. 6 committee’s presentations are apparently no exception.
Last night, the committee met to go over its run-of-show ahead of today’s events, NBC News reported. A “source familiar with the committee’s plans told NBC News about the meeting and its location on the Capitol complex,” allowing NBC to overhear committee member Jamie Raskin discussing the criminal referrals that the committee will likely be voting on this afternoon. (Any referrals carry no official legal weight, and it remains up to the DOJ to decide whether to bring charges.)
Raskin “said in part during the meeting overheard by NBC News that he believed referrals were ‘warranted.’”
You can read more about what Raskin had to say here.
Jan. 6 hearings had Easter eggs about possible Trump referrals
When the Jan. 6 committee met a year ago this week, they had former Trump White House chief of staff Mark Meadows on its mind, and specifically, whether his cherry-picked, partial production of documents and refusal to testify constituted contempt of Congress.
Among other reasons, Meadows was a critical witness, committee Vice Chair Liz Cheney emphasized, because it would help answer this “key question” facing the committee: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceedings to count electoral votes?”
As Alex Wagner discussed last week, Cheney’s choice of words was hardly accidental; rather, she was mimicking the federal criminal statute that punishes obstruction of an official proceeding, 18 U.S.C. § 1512(c)(2).
While that reporting is certainly newsy, the committee members have long suggested they see Trump’s conduct in criminal terms by nodding to the language of federal statutes, as Cheney did a year ago.
At the July 12 hearing this summer, for example, committee member Jamie Raskin noted, in discussing Trump’s invitation to his supporters to rally at the Ellipse, “Never before in American history had a president called for a crowd to come contest the counting of electoral votes by Congress or engaged in any effort designed to influence, delay, or obstruct the joint session of Congress in doing its work required by our Constitution and the Electoral Count Act.”
A month prior, committee Chair Bennie Thompson recalled how, at its initial hearings, the committee previewed its “initial findings about the conspiracy overseen and directed by Donald Trump to overturn the results of the 2020 presidential election and block the transfer of power.” Thompson’s reference to “the conspiracy” Trump helmed was likely a reference to 18 U.S.C. § 371, which penalizes conspiracies to defraud the U.S. and is another of the statutes the committee reportedly plans to include in its referral of Trump to the DOJ.
And of course, having litigated extensively with Trump lawyer John Eastman about the committee’s right to his emails, various members have invoked a California federal district court’s findings that Eastman and Trump more likely than not committed crimes — including both Sections 1512 and 371 — together.
When the committee convenes today, I’ll be watching to see how these hints from hearings past materialize into the expected criminal referrals.
New Congress will have just two members of Impeachment 10
Only 10 House Republicans voted last year to impeach Trump over Jan. 6. Just two of them will be serving in the next Congress.
Four of the Impeachment 10 decided to retire: Illinois’ Adam Kinzinger, Ohio’s Anthony Gonzalez, New York’s John Katko and Michigan’s Fred Upton.
Four others lost to their primary challengers earlier this year: Wyoming’s Liz Cheney, Washington state’s Jaime Herrera Beutler, Michigan’s Peter Meijer and South Carolina’s Tom Rice.
Ony two of the Impeachment 10 won re-election last month: California’s David Valadao and Washington state’s Dan Newhouse.
Pence floated the idea of testifying, but ultimately did not
In August, former Vice President Mike Pence — a uniquely positioned witness to the chaotic events of Jan. 6, one whose very life came to be in danger — said he would consider testifying before the House Jan. 6 committee.
“It would be unprecedented in history for a vice president to be summoned to testify on Capitol Hill,” he told a New Hampshire audience. “But I don’t want to prejudge.”
It didn’t happen. Writing for MaddowBlog, Steve Benen deconstructed Pence’s explanation for not testifying and concluded:
“This need not be complicated. The former vice president has a critically important perspective about one of the most important events in American history. He’s been willing to share his thoughts on the matter in public appearances, in media interviews, in published op-eds, and even in his book.
“But Pence is nevertheless refusing to speak to a bipartisan House panel that would benefit from his answers — and his explanation to justify such cowardice simply doesn’t make any sense.”
Read Steve’s full story below.
The Jan. 6 committee is lawyered up
Although any criminal referrals coming out of the committee won’t technically force the DOJ to bring charges, the committee has some legal firepower backing any allegations it makes.
The subcommittee tasked with referrals consists of Jamie Raskin, Adam Schiff, Zoe Lofgren and Liz Cheney.
Raskin, D-Md., is a Harvard Law grad who taught constitutional law for decades and wrote books on the law. Schiff, D-Calif., also graduated from Harvard law, and worked as a federal prosecutor in Los Angeles. Lofgren, D-Calif., taught and practiced immigration law, and Cheney, R-Wyo., practiced at a top firm. Schiff and Lofgren also served as impeachment managers during Trump's first impeachment as Raskin did during Trump's second impeachment, which means they've essentially acted as prosecutors against Trump before.
And though the committee isn’t acting as a prosecutor, we’ve seen in its public hearings that its members are intent on making their case to the American people. If the committee makes criminal referrals to the DOJ, then it will do so with the allegations having been vetted by lawyers who know well that it’s not enough to simply claim that someone did something bad.
Rather, if the committee wants to make a convincing legal case, then it must show that certain conduct satisfies the elements of whatever crimes have allegedly been committed. I’ll be watching to see how the committee makes its case, because if it meticulously lays out evidence that Trump or anyone else committed crimes beyond a reasonable doubt, it will be tough to ignore – even if that case isn’t being made by the branch of government that would have to bring it.
What criminal referrals against Trump would actually mean
Think the committee's potential criminals referrals against Trump will automatically lead to the DOJ pursuing charges? Think again.
As Jordan Rubin wrote for MSNBC Daily this morning:
"It might seem as if there’s some special legal significance to official pronouncements from a high-profile congressional committee that’s investigating a grave matter. But the committee can’t force the Justice Department’s hand. At the end of the day, prosecutors have the discretion to bring charges, regardless of who does or doesn’t recommend them."
Read Jordan's full story below.
The criminal referrals being considered by the committee
The Jan. 6 committee is expected to vote today on several possible referrals, including potentially asking the Department of Justice to pursue at least three criminal charges against Trump, according to NBC News.
Those potential charges are: obstructing an official proceeding, conspiracy to defraud the government, and inciting or assisting an insurrection.
The committee hasn't made public which, if any, of these referrals it will vote in favor of advancing.