Jan. 6 committee highlights: Report summary released, referrals approved

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.

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:

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.”

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.

"...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.

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. 

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.

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.

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.