Referrals to the U.S. Department of Justice Special Counsel and House Ethics Committee

¶The Committee’s work has produced a substantial body of new information. We know far more about the President’s plans and actions to overturn the election than almost all Members of Congress did when President Trump was impeached on January 13, 2021, or when he was tried by the Senate in February of that year. Fifty-seven of 100 Senators voted to convict President Trump at that time, and more than 20 others condemned the President’s conduct and said they were voting against conviction because the President’s term had already expired.⁵⁷⁰⁵⁷⁰ See Ryan Goodman and Josh Asabor, “In Their Own Words: The 43 Republicans’ Explanations of Their Votes Not to Convict Trump in Impeachment Trial,” Just Security, (Feb. 15, 2021), available at https://www.justsecurity.org/74725/in-their-own-words-the-43-republicans-explanations-of-their-votes-not-to-convict-trump-in-impeachment-trial/. At the time, the Republican Leader of the U.S. Senate said this about Donald Trump: “A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this. He was the only one who could.”⁵⁷¹⁵⁷¹ C-SPAN, “Senate Minority Leader Mitch McConnell Remarks Following Senate Impeachment Vote,” YouTube, at 5:10 – 5:46, (Feb. 13, 2021), available at https://www.youtube.com/watch?v=yxRMoqNnfvw. House Republican Leader Kevin McCarthy, who spoke directly with President Trump during the violence of January 6th, expressed similar views both in private and in public. Privately, Leader McCarthy stated: “But let me be very clear to you and I have been very clear to the President. He bears responsibility for his words and actions. No if, ands or buts.”⁵⁷²⁵⁷² “Republican Leader Kevin McCarthy Says Pres. Trump Admitted He Bears Some Responsibility for the January 6 Insurrection at the U.S. Capitol,” Alex Burns and Jonathan Martin, eds., ThisWillNotPass.com, (Jan. 11, 2021), available at https://www.thiswillnotpass.com/bookresources; Melanie Zanona, “New Audio Reveals McCarthy said Trump Admitted Bearing Some Responsibility for Capitol Attack,” CNN, (April 22, 2022), available at https://www.cnn.com/2022/04/22/politics/trump-january-6-responsibility-book/index.html. Leader McCarthy also relayed this conversation with President Trump to his Republican colleagues: “I asked him [Trump] personally today, does he hold responsibility for what happened. And he needs to acknowledge that.” Id. The Committee believes that House Republican Leader McCarthy’s testimony would be material to any criminal investigation of Donald Trump, not just to probe this apparent Trump acknowledgement of culpability, but also because Leader McCarthy spoke directly to Donald Trump and others who were in the White House on January 6th and unsuccessfully pleaded for the President’s immediate assistance to halt the violence. Leader McCarthy did not comply with the Select Committee’s subpoena.Show full note In public, Leader McCarthy concluded: “The President bears responsibility for Wednesday’s attack on Congress by mob rioters.”⁵⁷³⁵⁷³ “U.S. House Impeaches President Trump for Second Time, 232-197,” C-SPAN, at 4:14:56 - 4:15:31, (Jan. 13, 2021), available at https://www.c-span.org/video/?507879-101/house-impeaches-president-trump-time-232-197&live=; 167 Cong. Rec. H172 (daily ed. Jan. 13, 2021), available at https://www.congress.gov/117/crec/2021/01/13/CREC-2021-01-13-pt1-PgH165.pdf.

¶Today we know that the planning to overturn the election on January 6th was substantially more extensive, and involved many other players, and many other efforts over a longer time period. Indeed, the violent attack and invasion of the Capitol, and what provoked it, are only a part of the story.

¶From the outset of its hearings, the Committee has explained that President Trump and a number of other individuals made a series of very specific plans, ultimately with multiple separate elements, but all with one overriding objective: to corruptly obstruct, impede, or influence the counting of electoral votes on January 6th, and thereby overturn the lawful results of the election. The underlying and fundamental feature of that planning was the effort to get one man, Vice President Mike Pence, to assert and then exercise unprecedented and lawless powers to unilaterally alter the actual election outcome on January 6th. Evidence obtained by the Committee demonstrates that John Eastman, who worked with President Trump to put that and other elements of the plan in place, knew, even before the 2020 Presidential election, that Vice President Pence could not lawfully refuse to count official, certified electoral slates submitted by the Governors of the States.⁵⁷⁴⁵⁷⁴ See supra, Executive Summary. Testimony and contemporaneous documentary evidence also indicate that President Trump knew that the plan was unlawful before January 6th.⁵⁷⁵⁵⁷⁵ See supra, Executive Summary. When the Vice President’s counsel wrote to Eastman on January 6th to ask whether the latter had informed the President that the Vice President did not have authority to decide the election unilaterally, Eastman responded: “He’s been so advised,” and added, “[b]ut you know him—once he gets something in his head, it is hard to get him to change course.”⁵⁷⁶⁵⁷⁶ Documents on file with the Select Committee (National Archives Production), VP-R0000156_0001 (January 6, 2021, email chain between John Eastman and Greg Jacob re: Pennsylvania letter).

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¶Many of the other elements of President Trump’s plans were specifically designed to create a set of circumstances on January 6th to assist President Trump in overturning the lawful election outcome during Congress’s joint session that day. For example, President Trump pressured State legislatures to adopt new electoral slates that Vice President Pence could, unlawfully, count. Trump solicited State officials to “find” a sufficient number of votes to alter the final count, and instructed the Department of Justice to “just say that the election was was [sic] corrupt + leave the rest to me and the R[epublican] Congressmen.”⁵⁷⁷⁵⁷⁷ Documents on file with Select Committee (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000738 – HCOR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue). President Trump offered the job of Acting Attorney General to Jeffrey Clark. As our evidence has unequivocally demonstrated, Clark intended to use that position to send a series of letters from the Department of Justice to multiple States falsely asserting that the Department had found fraud and urging those States to convene their legislatures to alter their official electoral slates.⁵⁷⁸⁵⁷⁸ See supra, Executive Summary. The State legislatures lacked authority to change the lawful outcome of the State elections at that point. Nevertheless Eastman, Trump, and others nevertheless pushed for such action. And President Trump, with the help of the Republican National Committee and others, oversaw an effort to create and transmit to Government officials a series of intentionally false electoral slates for Vice President Pence to utilize on January 6th to alter or delay the count of lawful votes.⁵⁷⁹⁵⁷⁹ See supra, Executive Summary.

¶Of course, other elements of the plan complemented these efforts too. As this Report documents, President Trump was advised by his own experts and the Justice Department that his election fraud allegations were false, and he knew he had lost virtually all the legal challenges to the election, but he nevertheless engaged in a successful but fraudulent effort to persuade tens of millions of Americans that the election was stolen from him. This effort was designed to convince Americans that President Trump’s actions to overturn the election were justified. President Trump then urged his supporters to travel to Washington on January 6th to apply pressure to Congress to halt the count and change the election outcome, explaining to those who were coming to Washington that they needed to “take back” their country and “stop the steal.”⁵⁸⁰⁵⁸⁰ See supra, Executive Summary; Donald J. Trump (@realDonaldTrump), Twitter, Dec. 19, 2020 1:42 a.m. ET, available at http://web.archive.org/web/20201219064257/https://twitter.com/realDonaldTrump/status/1340185773220515840 (archived); see also, e.g., Donald J. Trump (@realDonaldTrump), Twitter, Dec. 26, 2020 8:14 a.m. ET, available at https://twitter.com/realDonaldTrump/status/1342821189077622792; Donald J. Trump (@realDonaldTrump), Twitter, Dec. 27, 2020 5:51 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1343328708963299338; Donald J. Trump (@realDonaldTrump), Twitter, Dec. 30, 2020 2:06 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1344359312878149634; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 1, 2021 12:52 p.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22RT+%40KylieJaneKremer%22 (retweeting @KylieJaneKremer, Dec. 19, 2020 3:50 p.m. ET, available at https://twitter.com/KylieJaneKremer/status/1340399063875895296); Donald J. Trump (@realDonaldTrump), Twitter, Jan. 1, 2021 2:53 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1345095714687377418; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 1, 2021 3:34 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1345106078141394944; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 1, 2021 6:38 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1345152408591204352; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 2, 2021 9:04 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1345551634907209730; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 3, 2021 1:29 a.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22RT+%40realDonaldTrump%3A+https%3A%2F%2Ft.co%2FnslWcFwkCj%22 (retweeting Donald J. Trump (@realDonaldTrump), Jan. 2, 2021 9:04 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1345551634907209730); Donald J. Trump (@realDonaldTrump), Twitter, Jan. 3, 2021 10:15 a.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22RT+%40JenLawrence21%22 (retweeting Jennifer Lynn Lawrence (@JenLawrence21), Jan. 3, 2021 12:17 a.m. ET, available at https://twitter.com/JenLawrence21/status/1345600194826686464); Donald J. Trump (@realDonaldTrump), Twitter, Jan. 3, 2021 10:17 a.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22RT+%40CodeMonkeyZ+if%22 (retweeting Ron Watkins (@CodeMonkeyZ) Jan. 2, 2021 9:14 p.m. ET, available at http://web.archive.org/web/20210103151826/https://twitter.com/CodeMonkeyZ/status/1345599512560078849 (archived)); Donald J. Trump, (@realDonaldTrump), Twitter, Jan. 3, 2021 10:24 a.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22RT+%40realMikeLindell%22 (retweeting Mike Lindell (@realMikeLindell), Jan. 2, 2021 5:47 p.m. ET, available at http://web.archive.org/web/20210103152421/https://twitter.com/realMikeLindell/status/1345547185836978176 (archived)); Donald J. Trump (@realDonaldTrump), Twitter, Jan. 3, 2021 10:27 a.m. ET, available at https://twitter.com/realDonaldTrump/status/1345753534168506370; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 3, 2021 10:28 a.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22RT+%40AmyKremer+we%22 (retweeting Amy Kremer (@AmyKremer), Jan. 2, 2021 2:58 p.m. ET, available at https://twitter.com/AmyKremer/status/1345459488107749386); Donald J. Trump (@realDonaldTrump), Twitter, Jan. 4, 2021 9:46 a.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22RT+%40realDonaldTrump+I+will+be+there.+Historic+day%21%22 (retweeting Donald J. Trump (@realDonaldTrump), Jan. 3, 2021 10:27 a.m. ET, available at https://twitter.com/realDonaldTrump/status/1345753534168506370); Donald J. Trump (@realDonaldTrump), Twitter, Jan. 5, 2021 10:27 a.m. ET, available at https://twitter.com/realDonaldTrump/status/1346478482105069568; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 5, 2021 5:43 p.m. ET, available at https://twitter.com/realDonaldTrump/status/1346588064026685443.Show full note

¶It is helpful in understanding these facts to focus on specific moments in time when President Trump made corrupt, dishonest and unlawful choices to pursue his plans. For example, by December 14th when the electoral college met and certified Joe Biden’s victory, President Trump knew that he had failed in all the relevant litigation; he had been advised by his own experts and the Justice Department that his election fraud claims were false; and he had been told by numerous advisors that he had lost and should concede. But despite his duty as President to take care that the laws are faithfully executed, he chose instead to ignore all of the judicial rulings and the facts before him and push forward to overturn the election. Likewise, in the days and hours before the violence of January 6th, President Trump knew that no State had issued any changed electoral slate. Indeed, neither President Trump nor his co-conspirators had any evidence that any majority of any State legislature was willing to do so. President Trump also knew that Vice President Pence could not lawfully refuse to count legitimate votes. Despite all of these facts, President Trump nevertheless proceeded to instruct Vice President Pence to execute a plan he already knew was illegal. And then knowing that a violent riot was underway, President Trump breached his oath of office; our Commander in Chief refused for hours to take the one simple step that his advisors were begging him to take—to instruct his supporters to disperse, stand down, and leave the Capitol. Instead, fully understanding what had unfolded at the Capitol, President Trump exacerbated the violence with a tweet attacking Vice President Pence.⁵⁸¹⁵⁸¹ Donald J. Trump (@realDonldTrump), Twitter, Jan. 6, 2021 2:24 p.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22mike+pence+%22&results=1 (archived) (“Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”); USA Today Graphics (@usatgraphics), Twitter, Jan. 7, 2021 9:56 p.m. ET, available at https://twitter.com/usatgraphics/status/1347376642956603392 (screenshotting the since-deleted tweet).Show full note Any rational person who had watched the events that day knew that President Trump’s 2:24 p.m. tweet would lead to further violence. It did. And, at almost exactly the same time, President Trump continued to lobby Congress to delay the electoral count.

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¶As the evidence demonstrates, the rioters at the Capitol had invaded the building and halted the electoral count. They did not begin to relent until President Trump finally issued a video statement instructing his supporters to leave the Capitol at 4:17 p.m., which had an immediate and helpful effect: rioters began to disperse⁵⁸²⁵⁸² “Trump Video Telling Protesters at Capitol Building to Go Home: Transcript,” Rev, (Jan. 6, 2021), available at https://www.rev.com/blog/transcripts/trump-video-telling-protesters-at-capitol-building-to-go-home-transcript; Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (July 12, 2022), at 2:36:58-2:37:30 and 2:44:00-2:45:05, available at https://www.youtube.com/watch?v=rrUa0hfG6Lo (“[W]hen President Trump put his tweet out, we literally left right after that come out . . . As soon as that come out, everybody started talking about it . . . it definitely dispersed a lot of the crowd. . . . We left.”).Show full note—but not before the Capitol was invaded, the election count was halted, feces were smeared in the Capitol, the Vice President and his family and many others were put in danger, and more than 140 law enforcement officers were attacked and seriously injured by mob rioters. Even if it were true that President Trump genuinely believed the election was stolen, this is no defense. No President can ignore the courts and purposely violate the law no matter what supposed “justification” he or she presents.

¶These conclusions are not the Committee’s alone. In the course of its investigation, the Committee had occasion to present evidence to Federal District Court Judge David Carter, who weighed that evidence against submissions from President Trump’s lawyer, John Eastman. Judge Carter considered this evidence in the context of a discovery dispute—specifically whether the Committee could obtain certain of Eastman’s documents pursuant to the “crime-fraud” exception to the attorney-client privilege. That exception provides that otherwise privileged documents may lose their privilege if they were part of an effort to commit a crime or a fraud, in this case by President Trump. Judge Carter set out his factual findings, discussing multiple elements of President Trump’s multi-part plan to overturn the election,⁵⁸³⁵⁸³ Order Re Privilege of Documents Dated January 4-7, 2021 at 3–16, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. March 28, 2022) (No. 8:22-cv-99-DOC-DFM). and then addressed whether the evidence, including Eastman’s email communications, demonstrated that Trump and Eastman committed crimes. “Based on the evidence,” Judge Carter explained, “the Court finds it more likely than not” that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021,” and “more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6th.”⁵⁸⁴⁵⁸⁴ Order Re Privilege of Documents Dated January 4-7, 2021 at 53–53, 58, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. March 28, 2022) (No. 8:22-cv-99-DOC-DFM) (referring to two Federal criminal statutes). Judge Carter also concluded that President Trump’s and Eastman’s “pressure campaign to stop the electoral count did not end with Vice President Pence—it targeted every tier of federal and state elected officials”⁵⁸⁵⁵⁸⁵ Order Re Privilege of 599 Documents Dated November 3, 2020 – January 20, 2021 at 24, Eastman v. Thompson et al., No. 8:22-cv-99-DOC-DFM, (C.D. Cal. June 7, 2022), ECF No. 24. and was “a coup in search of a legal theory.”⁵⁸⁶⁵⁸⁶ Order Re Privilege of Documents Dated January 4-7, 2021 at 63–64, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. March 28, 2022) (No. 8:22-cv-99-DOC-DFM). “The plan spurred violent attacks on the seat of our nation’s government,” Judge Carter wrote, and it threatened to “permanently end[] the peaceful transition of power. . . .”⁵⁸⁷⁵⁸⁷ Order Re Privilege of Documents Dated January 4-7, 2021 at 64, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. March 28, 2022) (No. 8:22-cv-99-DOC-DFM).

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¶The U.S. Department of Justice has been investigating and prosecuting persons who invaded the Capitol, engaged in violence, and planned violence on that day. The Department has charged more than 900 individuals, and nearly 500 have already been convicted or pleaded guilty as we write.⁵⁸⁸⁵⁸⁸ See “23 Months Since the January 6th Attack on the Capitol,” Department of Justice, (Dec. 8, 2022), available at https://www.justice.gov/usao-dc/23-months-january-6-attack-capitol. As the Committee’s investigation progressed through its hearings, public reporting emerged suggesting that the Department of Justice had also begun to investigate several others specifically involved in the events being examined by the Committee. Such reports indicated that search warrants had been issued, based on findings of probable cause, for the cell phones of John Eastman, Jeffrey Clark, and Representative Scott Perry.⁵⁸⁹⁵⁸⁹ Kyle Cheney, “Rep. Scott Perry Suing to Block DOJ Access to His Cell Phone,” Politico, (Aug. 24, 2022), available at https://www.politico.com/news/2022/08/24/rep-scott-perry-suing-to-block-doj-access-to-his-cell-phone-00053486; Betsy Woodruff Swan, Josh Gerstein, and Kyle Cheney, “DOJ Searches Home of Former Official Who Aided Alleged Pro-Trump ‘Coup’,” Politico, (June 23, 2022), available at https://www.politico.com/news/2022/06/23/law-enforcement-trump-official-coup-00041767.Show full note Other reports suggested that the Department had empaneled one or more grand juries and was pursuing a ruling compelling several of this Committee’s witnesses, including Pat Cipollone and Greg Jacob, to give testimony on topics for which President Trump had apparently asserted executive privilege. Recent reporting suggests that a Federal district court judge has now rejected President Trump’s executive privilege claims in that context.⁵⁹⁰⁵⁹⁰ See, e.g., Sarah Murray, Evan Perez, and Katelyn Polantz, “Federal Judge Orders Former Top Lawyers in Trump’s White House to Testify in Criminal Grand Jury Probe,” CNN, (Dec. 1, 2022), available at https://www.cnn.com/2022/12/01/politics/cipollone-philbin-trump-lawyers-testify.

¶Criminal referrals from a congressional committee are often made in circumstances where prosecutors are not yet known to be pursuing some of the same facts and evidence. That is not the case here. During the course of our investigation, both the U.S. Department of Justice and at least one local prosecutor’s office (Fulton County, Georgia) have been actively conducting criminal investigations concurrently with this congressional investigation.⁵⁹¹⁵⁹¹ Sara Murray and Jason Morris, “Fulton County Prosecutor Investigating Trump Aims for Indictments as Soon as December,” CNN, (Oct. 6, 2022), available at https://www.cnn.com/2022/10/06/politics/fani-willis-georgia-prosecutor-trump-indictments-december/index.html. In fact, the U.S. Department of Justice has recently taken the extraordinary step of appointing a Special Counsel to investigate the former President’s conduct.⁵⁹²⁵⁹² The Special Counsel is to oversee the Department’s ongoing investigation “into whether any person or entity unlawfully interfered with the transfer of power following the 2020 Presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” “Appointment of a Special Counsel,” Department of Justice, (Nov. 18, 2022), available at https://www.justice.gov/opa/pr/appointment-special-counsel-0. In addition, the Special Counsel is to oversee the Department’s “ongoing investigation involving classified documents and other Presidential records, as well as the possible obstruction of that investigation. . . .” Id.Show full note

¶The Committee recognizes that the Department of Justice and other prosecutorial authorities may be in a position to utilize investigative tools, including search warrants and grand juries, superior to the means the Committee has for obtaining relevant information and testimony. Indeed, both the Department of Justice and the Fulton County District Attorney may now have access to witness testimony and records that have been unavailable to the Committee, including testimony from President Trump’s Chief of Staff Mark Meadows, and others who either asserted privileges or invoked their Fifth Amendment rights.⁵⁹³⁵⁹³ The House of Representatives held Meadows in contempt for refusing to testify before the Committee, 167 Cong. Rec. H7814-7815 (daily ed. Dec. 14, 2021), but DOJ declined to prosecute him. See Josh Gerstein, Kyle Cheny, and Nicholas Wu, “DOJ Declines to Charge Meadows, Scavino with Contempt of Congress for Defying Jan. 6 Committee,” Politico, (June 3, 2022), available at https://www.politico.com/news/2022/06/03/doj-declines-to-charge-meadows-scavino-with-contempt-of-congress-for-defying-jan-6-committee-00037230.Show full note The Department may also be able to access, via grand jury subpoena or otherwise, the testimony of Republican Leader Kevin McCarthy, Representative Scott Perry, Representative Jim Jordan and others, each of whom appears to have had materially relevant communications with Donald Trump or others in the White House but who failed to comply with the Select Committee’s subpoenas.

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¶Taking all of these facts into account, and based on the breadth of the evidence it has accumulated, the Committee makes the following criminal referrals to the Department of Justice’s Special Counsel.

I. Obstruction of an Official Proceeding (18 U.S.C. § 1512(c))

¶Section 1512(c)(2) of Title 18 of the United States Code makes it a crime to “corruptly” “obstruct[], influence[], or impede[] any official proceeding, or attempt[] to do so.”⁵⁹⁴⁵⁹⁴ 18 U.S.C. § 1512(c)(2). Sufficient evidence exists of one or more potential violations of this statute for a criminal referral of President Trump and others.⁵⁹⁵⁵⁹⁵ According to DOJ, “[a] conviction under Section 1512(c)(2) requires proof that”: (1) “the natural and probable effect of the defendant’s actions were to obstruct [influence or impede] the official proceeding;” (2) “that [defendant] knew that his actions were likely to obstruct [influence or impede] that proceeding;” and (3) “that he acted with the wrongful or improper purpose of delaying or stopping the official proceeding.” United States v. Andries, No. 21-93 (RC), 2022 U.S. Dist. LEXIS 44794 at *37 n.8 (D.D.C. Mar. 14, 2022) (quoting Government’s Response to Defendant’s Second Supplemental Brief at 6); see United States v. Aguilar; 515 U.S. 593, 616 (1995) (Scalia, J., concurring in part, dissenting in part) (describing the “longstanding and well-accepted meaning” of “corruptly” as denoting “an act done with an intent to give some advantage inconsistent with official duty and the rights of others” (quoting United States v. Ogle, 613 F.2d 233, 238 (10th Cir. 1979))).Show full note

¶First, there should be no question that Congress’s joint session to count electoral votes on January 6th was an “official proceeding” under section 1512(c). Many Federal judges have already reached that specific conclusion.⁵⁹⁶⁵⁹⁶ See, e.g., United States v. Gillespie, No. 22-CR-60 (BAH), 2022 U.S. Dist. LEXIS 214833, at *7-8 (D.D.C. Nov. 29, 2022); United States v. Seefried, No. 1:21-cr-287 (TNM), 2022 U.S. Dist. LEXIS 196980, at *2-3 (D.D.C. Oct. 29, 2022); United States v. Miller, 589 F. Supp. 3d 60, 67 (D.D.C. 2022), reconsideration denied, No. 1:21-CR-119 (CJN), 589 F. Supp. 3d 60 (D.D.C. May 27, 2022); United States v. Puma, No. 1:21-CR-454 (PLF), 2022 U.S. Dist. LEXIS 48875, at *10 (D.D.C. Mar. 19, 2022); United States v. McHugh, 583 F. Supp. 3d 1, 14-15 (D.D.C. 2022). See also T. Kanefield, “January 6 Defendants Are Raising a Creative Defense. It Isn’t Working,” Washington Post, (Feb. 15, 2022), available at https://www.washingtonpost.com/outlook/2022/02/15/jan-6-official-proceeding/.Show full note

¶Second, there should be no doubt that President Trump knew that his actions were likely to “obstruct, influence or impede” that proceeding. Based on the evidence developed, President Trump was attempting to prevent or delay the counting of lawful certified electoral college votes from multiple States.⁵⁹⁷⁵⁹⁷ See supra, Executive Summary. President Trump was directly and personally involved in this effort, personally pressuring Vice President Pence relentlessly as the joint session on January 6th approached.⁵⁹⁸⁵⁹⁸ See supra, Executive Summary.

¶Third, President Trump acted with a “corrupt” purpose. Vice President Pence, Greg Jacob, and others repeatedly told the President that the Vice President had no unilateral authority to prevent certification of the election.⁵⁹⁹⁵⁹⁹ See supra, Executive Summary. Indeed, in an email exchange during the violence of January 6th, Eastman admitted that President Trump had been “advised” that Vice President Pence could not lawfully refuse to count votes under the Electoral Count Act, but “once he gets something in his head, it’s hard to get him to change course.”⁶⁰⁰⁶⁰⁰ Documents on file with the Select Committee (National Archives Production), VP-R0000156_0001 (January 6, 2021, email chain between John Eastman and Greg Jacob re: Pennsylvania letter). One judge on the U.S. District Court for the District of Columbia, in the course of concluding that section 1512(c) is not void for vagueness, interpreted the “corruptly” element as meaning “contrary to law, statute, or established rule.” United States v. Sandlin, 575 F. Supp. 3d. 15–16, (D.D.C. 2021). As explained above, President Trump attempted to cause the Vice President to violate the Electoral Count Act, and even Dr. Eastman advised President Trump that the proposed course of action would violate the Act. We believe this satisfies the “corruptly” element of the offense under the Sandlin opinion.Show full note In addition, President Trump knew that he had lost dozens of State and Federal lawsuits, and that the Justice Department, his campaign and his other advisors concluded that there was insufficient fraud to alter the outcome. President Trump also knew that no majority of any State legislature had taken or manifested any intention to take any official action that could change a State’s electoral college votes.⁶⁰¹⁶⁰¹ Indeed, it would not have been legally possible for a State to have done so in the days before January 6th. But President Trump pushed forward anyway. As Judge Carter explained, “[b]ecause President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting ‘corruptly’ under § 1512(c).”⁶⁰²⁶⁰² Order Re Privilege of Documents Dated January 4-7, 2021 at 49-50, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. March 28, 2022) (No. 8:22-cv-99-DOC-DFM).

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¶Sufficient evidence exists of one or more potential violations of 18 U.S.C. § 1512(c) for a criminal referral of President Trump based solely on his plan to get Vice President Pence to prevent certification of the election at the joint session of Congress. Those facts standing alone are sufficient. But such a charge under that statute can also be based on the plan to create and transmit to the executive and legislative branches fraudulent electoral slates, which were ultimately intended to facilitate an unlawful action by Vice President Pence—to refuse to count legitimate, certified electoral votes during Congress’s official January 6th proceeding.⁶⁰³⁶⁰³ See supra, Executive Summary. Additionally, evidence developed about the many other elements of President Trump’s plans to overturn the election, including soliciting State legislatures, State officials, and others to alter official electoral outcomes, provides further evidence that President Trump was attempting through multiple means to corruptly obstruct, impede, or influence the counting of electoral votes on January 6th. This is also true of President Trump’s personal directive to the Department of Justice to “just say that the election was was [sic] corrupt + leave the rest to me and the R[epublican] Congressmen.”⁶⁰⁴⁶⁰⁴ Documents on file with Select Committee (Department of Justice Production), HCOR-Pre-Certification-Events-07282021-000738 - COR-Pre-Certification-Events-07282021-000739 (December 27, 2020, handwritten notes from Richard Donoghue).

¶We also stress in particular the draft letter to the Georgia legislature authored by Jeffrey Clark and another Trump political appointee at the Department of Justice. The draft letter embraces many of the same theories that John Eastman and others were asserting in President Trump’s effort to lobby State legislatures. White House Counsel Pat Cipollone described that letter as “a murder-suicide pact,” and other White House and Justice Department officials offered similar descriptions.⁶⁰⁵⁶⁰⁵ See supra, Executive Summary. As described herein, that draft letter was intended to help persuade a State legislature to change its certified slate of electoral college electors based on false allegations of fraud, so Vice President Pence could unilaterally and unlawfully decide to count a different slate on January 6th.⁶⁰⁶⁶⁰⁶ See supra, Executive Summary. The letter was transparently false, improper, and illegal. President Trump had multiple communications with Clark in the days before January 6th, and there is no basis to doubt that President Trump offered Clark the position of Acting Attorney General knowing that Clark would send the letter and others like it.⁶⁰⁷⁶⁰⁷ See supra, Executive Summary. Jeffrey Clark invoked his Fifth Amendment privilege against self-incrimination in response to questions regarding this letter. As already noted, the political appointee who assisted in drafting the letter was hired at the Justice Department on December 15, 2020, but had worked on behalf of President Trump on election challenges in the weeks beforehand (including, apparently, while simultaneously serving as Special Counsel for the White House Office of Management and Budget).Show full note

¶Of course, President Trump is also responsible for recruiting tens of thousands of his supporters to Washington for January 6th, and knowing they were angry and some were armed, instructing them to march to the Capitol and “fight like hell.”⁶⁰⁸⁶⁰⁸ See supra, Executive Summary. And then, while knowing a violent riot was underway, he refused for multiple hours to take the single step his advisors and supporters were begging him to take to halt the violence: to make a public statement instructing his supporters to disperse and leave the Capitol.⁶⁰⁹⁶⁰⁹ See supra, Executive Summary. Through action and inaction, President Trump corruptly obstructed, delayed, and impeded the vote count.

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¶In addition, the Committee believes sufficient evidence exists for a criminal referral of John Eastman and certain other Trump associates under 18 U.S.C. §1512(c). The evidence shows that Eastman knew in advance of the 2020 election that Vice President Pence could not refuse to count electoral votes on January 6th.⁶¹⁰⁶¹⁰ See supra, Executive Summary. In the days before January 6th, Eastman was warned repeatedly that his plan was illegal and “completely crazy,” and would “cause riots in the streets.”⁶¹¹⁶¹¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 26. Nonetheless, Eastman continued to assist President Trump’s pressure campaign in public and in private, including in meetings with the Vice President and in his own speech at the Ellipse on January 6th. And even as the violence was playing out at the Capitol, Eastman admitted in writing that his plan violated the law but pressed for Pence to do it anyway.⁶¹²⁶¹² Documents on file with the Select Committee (National Archives Production), VP-R0000156_0001 (January 6, 2021, email chain between John Eastman and Greg Jacob re: Pennsylvania letter). In the immediate aftermath of January 6th, White House lawyer Eric Herschmann told Eastman that he should “[g]et a great F’ing criminal defense lawyer, you’re going to need it.”⁶¹³⁶¹³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Eric Herschmann, (Apr. 6, 2022), p. 44. Although Eastman invoked his Fifth Amendment rights as a reason not to answer any of this Committee’s substantive questions during his deposition, he has recently suggested in public that he only wished to delay the count of votes by multiple days. As the evidence developed by this Committee demonstrates, Eastman knew that such an effort to delay the count would also be illegal. See Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), at 1:32:00-1:35:13, available at https://www.youtube.com/watch?v=vBjUWVKuDj0 (“[D]id Dr. Eastman seem to admit that both of these theories suffered from similar legal flaws? [T]his new theory, as I was pointing out to him, or the procedural theory, still violates several provisions of the Electoral Count Act, as he acknowledged. . . . So, he acknowledged in those conversations that the underlying legal theory was the same. . . .”). In addition, neither Eastman nor any other co-conspirator had information establishing that any delay in counting votes would or could have changed the outcome of the election in any State.Show full note Others working with Eastman likely share in Eastman’s culpability. For example, Kenneth Chesebro was a central player in the scheme to submit fake electors to the Congress and the National Archives.

¶The Committee notes that multiple Republican Members of Congress, including Representative Scott Perry, likely have material facts regarding President Trump’s plans to overturn the election. For example, many Members of Congress attended a White House meeting on December 21, 2020, in which the plan to have the Vice President affect the outcome of the election was disclosed and discussed. Evidence indicates that certain of those Members unsuccessfully sought Presidential pardons from President Trump after January 6th,⁶¹⁴⁶¹⁴ See supra, Executive Summary. We also note that these Republican Members of Congress, who had more knowledge of Trump’s planning for January 6th than any other Members of Congress, were also likely in a far superior position than any other Members to warn the Capitol Police of the risks of violence at the Capitol on January 6th. as did Eastman,⁶¹⁵⁶¹⁵ See Select Committee to Investigate the January 6th Attack on the U.S. Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16, 2022), at 2:29:50, available at https://www.youtube.com/watch?v=vBjUWVKuDj0 (“I’ve decided that I should be on the pardon list, if that is still in the works.”). revealing their own clear consciousness of guilt.

II. Conspiracy to Defraud the United States (18 U.S.C. § 371)

¶Section 371 of Title 18 of the U.S. Code provides that “[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” The Committee believes sufficient evidence exists for a criminal referral of President Trump and others under this statute.⁶¹⁶⁶¹⁶ The elements of a section 371 conspiracy to defraud the United States are: (1) at least two people entered into an agreement to obstruct a lawful function of the government, (2) by deceitful or dishonest means, and (3) a member of the conspiracy engaged in at least one overt act in furtherance of the agreement. Order Re Privilege of Documents Dated January 4-7, 2021 at 53, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). Put similarly, to prove a violation section 371’s “defraud” provision, the Government must prove that the defendant: (1) agreed with at least one other person to defraud the United States, (2) knowingly participated in the conspiracy with the intent to defraud the United States, and (3) that at least one overt act was taken in furtherance of the conspiracy. See United States v. Dean, 55 F.3d 640, 647 (D.C. Cir. 1995) (citing United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985)); see also United States v. Mellen, 158, 393 F.3d 175, 181 (D.C. Cir. 2004). An individual “defrauds” the Government for purposes of section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); see also United States v. Haldeman, 559 F.2d 31, 122 n.255 (D.C. Cir. 1976) (upholding jury verdict on instruction defining “defrauding the United States” as: “depriv[ing] the Government of its right to have the officials of its departments and agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty and obstruction”).Show full note

¶First, President Trump entered into an agreement with individuals to obstruct a lawful function of the government (the certification of the election). The evidence of this element overlaps greatly with the evidence of the section 1512(c)(2) violations, so we will not repeat it at length here. President Trump engaged in a multi-part plan described in this Report to obstruct a lawful certification of the election. Judge Carter focused his opinions largely on John Eastman’s role, as Eastman’s documents were at issue in that case, concluding that “the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Eastman.”⁶¹⁷⁶¹⁷ Order Re Privilege of Documents Dated January 4-7, 2021 at 54-55, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). But President Trump entered into agreements—whether formal or informal⁶¹⁸⁶¹⁸ See Order Re Privilege of Documents Dated January 4-7, 2021 at 53, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). (“An ‘agreement’ between co-conspirators need not be express and can be inferred from the conspirators’ conduct.”).—with several other individuals who assisted with the multi-part plan. With regard to the Department of Justice, Jeffrey Clark stands out as a participant in the conspiracy, as the evidence suggests that Clark entered into an agreement with President Trump that if appointed Acting Attorney General, he would send a letter to State officials falsely stating that the Department of Justice believed that State legislatures had a sufficient factual basis to convene to select new electors. This was false—the Department of Justice had reached the conclusion that there was no factual basis to contend that the election was stolen. Again, as with section 1512(c), the conspiracy under section 371 appears to have also included other individuals such as Chesebro, Rudolph Giuliani, and Mark Meadows, but this Committee does not attempt to determine all of the participants of the conspiracy, many of whom refused to answer this Committee’s questions.

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¶Second, there are several bases for finding that the conspirators used “deceitful or dishonest means.” For example, President Trump repeatedly lied about the election, after he had been told by his advisors that there was no evidence of fraud sufficient to change the results of the election.⁶¹⁹⁶¹⁹ See infra, Chapter 1. In addition, the plot to get the Vice President to unilaterally prevent certification of the election was manifestly (and admittedly) illegal, as discussed above. Eastman and others told President Trump that it would violate the Electoral Count Act if the Vice President unilaterally rejected electors. Thus Judge Carter once again had little trouble finding that the intent requirement (“deceitful or dishonest means”) was met, stating that “President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by ‘dishonest’ means under § 371.”⁶²⁰⁶²⁰ Order Re Privilege of Documents Dated January 4-7, 2021 at 55, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). Judge Carter rejected the notion that Eastman’s plan—which the President adopted and actualized—was a “good faith interpretation” of the law, finding instead that it was “a partisan distortion of the democratic process.”⁶²¹⁶²¹ Order Re Privilege of Documents Dated January 4-7, 2021 at 57, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). Similarly, both President Trump and Clark had been told repeatedly that the Department of Justice had found no evidence of significant fraud in any of its investigations, but they nonetheless pushed the Department of Justice to send a letter to State officials stating that the Department had found such fraud. And Georgia Secretary of State Brad Raffensperger and others made clear to President Trump that they had no authority to “find” him 11,780 votes, but the President relentlessly insisted that they do exactly that, even to the point of suggesting there could be criminal consequences if they refused.⁶²²⁶²² See infra, Chapter 2. President Trump’s call with Secretary Raffensperger may have violated several provisions of both Federal and Georgia law. We do not attempt to catalogue all the possible violations here.

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¶Third, there were numerous overt acts in furtherance of the agreement, including each of the parts of the President’s effort to overturn the election. As Judge Carter concluded, President Trump and Eastman participated in “numerous overt acts in furtherance of their shared plan.”⁶²³⁶²³ Order Re Privilege of Documents Dated January 4-7, 2021 at 57, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). These included, but certainly were not limited to, direct pleas to the Vice President to reject electors or delay certification, including in Oval Office meetings and the President’s vulgar comments to the Vice President on the morning of January 6th. Judge Carter also addressed evidence that President Trump knowingly made false representations to a court. Judge Carter concluded that Eastman’s emails showed “that President Trump knew that the specific numbers of voter fraud” cited in a complaint on behalf of President Trump “were wrong but continued to tout those numbers, both in court and to the public.” Judge Carter found that the emails in question were related to and in furtherance of a conspiracy to defraud the United States.⁶²⁴⁶²⁴ Order Re Privilege of Documents Dated January 4-7, 2021 at 59, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM).

¶In finding that President Trump, Eastman, and others engaged in conspiracy to defraud the United States under section 371, Judge Carter relied on the documents at issue (largely consisting of Eastman’s own emails) and evidence presented to the court by this Committee. This Committee’s investigation has progressed significantly since Judge Carter issued his first crime-fraud ruling in March 2022. The evidence found by this Committee and discussed in detail in this Report further documents that the conspiracy to defraud the United States under section 371 extended far beyond the effort to pressure the Vice President to prevent certification of the election. The Committee believes there is sufficient evidence for a criminal referral of the multi-part plan described in this Report under section 371, as the very purpose of the plan was to prevent the lawful certification of Joe Biden’s election as President.

III. Conspiracy to Make a False Statement (18 U.S.C. §§ 371, 1001)

¶President Trump, through others acting at his behest, submitted slates of fake electors to Congress and the National Archives. Section 1001 of Title 18 of the United States Code applies, in relevant part, to “whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

¶(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

¶(2) makes any materially false, fictitious, or fraudulent statement or representation; or

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¶(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”

¶According to the Department of Justice, whether a false statement is criminal under section 1001 “depends on whether there is an affirmative response to each of the following questions:

1. Was the act or statement material?
2. Was the act within the jurisdiction of a department or agency of the United States?
3. Was the act done knowingly and willfully?”⁶²⁵⁶²⁵ “908. ELEMENTS OF 18 U.S.C. § 1001,” Department of Justice, (last accessed on Dec. 13, 2022), available at https://www.justice.gov/archives/jm/criminal-resource-manual-908-elements-18-usc-1001.

¶In addition, and as explained above, 18 U.S.C. § 371 makes it a crime to conspire to “commit any offense against the United States.”⁶²⁶⁶²⁶ The elements of a section 371 conspiracy are discussed above.

¶The evidence suggests President Trump conspired with others to submit slates of fake electors to Congress and the National Archives. Sufficient evidence exists of a violation of 18 U.S.C. §§ 371 and 1001 for a criminal referral of President Trump and others.

¶As explained earlier and in Chapter 3 of this Report, the certifications signed by Trump electors in multiple States were patently false. Vice President Biden won each of those States, and the relevant State authorities had so certified. It can hardly be disputed that the false slates of electors were material, as nothing can be more material to the joint session of Congress to certify the election than the question of which candidate won which States. Indeed, evidence obtained by the Committee suggests that those attempting to submit certain of the electoral votes regarded the need to provide that material to Vice President Pence as urgent.⁶²⁷⁶²⁷ As explained in Chapter 3, staffers for Rep. Mike Kelly (R-PA) and Sen. Ron Johnson (R-WI) reached out to Vice President Pence’s director of legislative affairs, apparently seeking to deliver fake certificates on January 6. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00012 (January 6, 2021, text message from Rep. Kelly’s chief of staff, Matt Stroia, to Chris Hodgson on January at 8:41 a.m.), 00058 (January 6, 2021, text messages from Senator Johnson’s chief of staff, Sean Riley, to Chris Hodgson around 12:37 p.m.).Show full note

¶There should be no question that section 1001 applies here. The false electoral slates were provided both to the executive branch (the National Archives) and the legislative branch.⁶²⁸⁶²⁸ See infra, Chapter 3. The statute applies to “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”⁶²⁹⁶²⁹ 18 U.S.C. § 1001 (emphasis added). It is well established that false statements to Congress can constitute violations of section 1001.⁶³⁰⁶³⁰ See, e.g., United States v. Bowser, 964 F.3d 26, 31 (D.C. Cir. 2020), cert. denied, 141 S. Ct. 1390 (2021) (“[T]he False Statements Act applies to ‘any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.’ 18 U.S.C. § 1001(c)(2) (emphasis added).”); United States v. Stone, 394 F. Supp. 3d 1, 10 (D.D.C. 2019).

¶Finally, the false statement was made knowingly and willfully. There is some evidence suggesting that some signatories of the fake certificates believed that the certificates were contingent, to be used only in the event that President Trump prevailed in litigation challenging the election results in their States. That may be relevant to the question whether those electors knowingly and willfully signed a false statement at the time they signed the certificates. But it is of no moment to President Trump’s conduct, as President Trump (including acting through co-conspirators such as John Eastman and Kenneth Chesebro) relied on the existence of those fake electors as a basis for asserting that the Vice President could reject or delay certification of the Biden electors. In fact, as explained earlier and in Chapter 5 of this Report, Eastman’s memorandum setting out a six-step plan for overturning the election on January 6th begins by stating that “7 states have transmitted dual slates of electors to the President of the Senate.”

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¶The remaining question is who engaged in this conspiracy to make the false statement to Congress under section 1001. The evidence is clear that President Trump personally participated in a scheme to have the Trump electors meet, cast votes, and send their votes to the joint session of Congress in several States that Vice President Biden won, and then his supporters relied on the existence of these fake electors as part of their effort to obstruct the joint session. Republican National Committee (RNC) Chairwoman Ronna McDaniel testified before this Committee that President Trump and Eastman directly requested that the RNC organize the effort to have these fake (i.e., Trump) electors meet and cast their votes.⁶³¹⁶³¹ See Select Committee to Investigate the January 6th Attack on the United States Capitol, Business Meeting on the January 6th Investigation, 117th Cong., 2d sess., (Oct. 13, 2022), at 1:14:59-1:15:22 available at https://www.youtube.com/watch?v=IQvuBoLBuC0 (“[President Trump] turned the call over to Mr. Eastman, who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors, in case any of the legal challenges that were ongoing changed the result of any of the states.”).Show full note Thus, the Committee believes that sufficient evidence exists for a criminal referral of President Trump for illegally engaging in a conspiracy to violate section 1001; the evidence indicates that he entered into an agreement with Eastman and others to make the false statement (the fake electoral certificates), by deceitful or dishonest means, and at least one member of the conspiracy engaged in at least one overt act in furtherance of the conspiracy (e.g., President Trump and Eastman’s call to Ronna McDaniel).

IV. “Incite,” “Assist” or “Aid and Comfort” an Insurrection (18 U.S.C. § 2383)

¶Section 2383 of Title 18 of the United States Code applies to anyone who “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.”⁶³²⁶³² 18 U.S.C. § 2383. The Committee recognizes that section 2383 does not require evidence of an “agreement” between President Trump and the violent rioters to establish a violation of that provision; instead, the President need only have incited, assisted, or aided and comforted those engaged in violence or other lawless activity in an effort to prevent the peaceful transition of the Presidency under our Constitution. 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.”⁶³³⁶³³ Thompson v. Trump, 590 F. Supp. 3d 46, 115 (D.D.C. 2022), appeal pending, No. 22-5069 (D.C. Cir. Mar. 18, 2022). Moreover, President Trump was impeached for “Incitement of Insurrection,” and a majority of the Senate voted to convict, with many more suggesting they might have voted to convict had President Trump still been in office at the time.⁶³⁴⁶³⁴ See Ryan Goodman and Josh Asabor, “In Their Own Words: The 43 Republicans’ Explanations of Their Votes Not to Convict Trump in Impeachment Trial,” Just Security, (Feb. 15, 2021), available at https://www.justsecurity.org/74725/in-their-own-words-the-43-republicans-explanations-of-their-votes-not-to-convict-trump-in-impeachment-trial/.

¶As explained throughout this Report and in this Committee’s hearings, President Trump was directly responsible for summoning what became a violent mob to Washington, DC, urging them to march to the Capitol, and then further provoking the already violent and lawless crowd with his 2:24 p.m. tweet about the Vice President. Even though President Trump had repeatedly been told that Vice President Pence had no legal authority to stop the certification of the election, he asserted in his speech on January 6th that if the Vice President “comes through for us” that he could deliver victory to Trump: “[I]f Mike Pence does the right thing, we win the election.” This created a desperate and false expectation in President Trump’s mob that ended up putting the Vice President and his entourage and many others at the Capitol in physical danger. When President Trump tweeted at 2:24 p.m., he knew violence was underway. His tweet exacerbated that violence.⁶³⁵⁶³⁵ See supra, Executive Summary.

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¶During the ensuing riot, the President refused to condemn the violence or encourage the crowd to disperse despite repeated pleas from his staff and family that he do so. The Committee has evidence from multiple sources establishing these facts, including testimony from former White House Counsel Pat Cipollone. Although Cipollone’s testimony did not disclose a number of direct communications with President Trump in light of concerns about executive privilege, the Department now appears to have obtained a ruling that Cipollone can testify before a grand jury about these communications. Based on the information it has obtained, the Committee believes that Cipollone and others can provide direct testimony establishing that President Trump refused repeatedly, for multiple hours, to make a public statement directing his violent and lawless supporters to leave the Capitol. President Trump did not want his supporters (who had effectively halted the vote counting) to disperse. Evidence obtained by the Committee also indicates that President Trump did not want to provide security assistance to the Capitol during that violent period.⁶³⁶⁶³⁶ See supra, Executive Summary. The evidence suggests that the Vice President and certain members of President Trump’s staff urged DOD to deploy the National Guard notwithstanding the President’s wishes. This appalling behavior by our Commander in Chief occurred despite his affirmative constitutional duty to act to ensure that the laws are faithfully executed.⁶³⁷⁶³⁷ A prominent U.S. professor of criminal law has opined that President Trump can be held criminally responsible under section 2383 for his failure to act, when he had a duty to act given his constitutional obligation under Article II section 3 of the Constitution to “take Care that the Laws be faithfully executed.” See Albert W. Alschuler, “Trump and the Insurrection Act: The Legal Framework,” Just Security, (Aug. 16, 2022), available at https://www.justsecurity.org/82696/trump-and-the-insurrection-act-the-true-legal-framework/. Professor Albert Alschuler, the Julius Kreeger Professor Emeritus at the University of Chicago Law School, taught criminal law for over 50 years at many of our Nation’s leading law schools. He has published a number of analytical pieces applying the “assists” and “aid and comfort” clauses of that provisions (which he analogizes to “aiding and abetting” accomplice liability) to the evidence presented at the Committee’s hearings. In any event, as described above, President Trump did act, including through his 2:24 p.m. tweet about the Vice President that inflamed the crowd attacking the Capitol.Show full note

¶The Committee believes that sufficient evidence exists for a criminal referral of President Trump for “assist[ing]” or “ai[ding] and comfort[ing]” those at the Capitol who engaged in a violent attack on the United States. The Committee has developed significant evidence that President Trump intended to disrupt the peaceful transition of power and believes that the Department of Justice can likely elicit testimony relevant to an investigation under section 2383.

¶For example, Chief of Staff Mark Meadows told White House Counsel Pat Cipollone that the President “doesn’t want to do anything” to stop the violence.⁶³⁸⁶³⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022) p. 26. Worse, at 2:24 p.m., the President inflamed and exacerbated the mob violence by sending a tweet stating that the Vice President “didn’t have the courage to do what should have been done.”⁶³⁹⁶³⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (July 21, 2022), at 1:02:53, available at https://www.youtube.com/watch?v=pbRVqWbHGuo; Donald J. Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 2:24 p.m. ET, available at https://www.thetrumparchive.com/?searchbox="didn’t+have+the+courage+to+do+what+should+have+been+done" (archived).Show full note The President threw gasoline on the fire despite knowing that there was a violent riot underway at the Capitol. Indeed, video and audio footage from the attack shows that many of the rioters specifically mentioned Vice President Pence.⁶⁴⁰⁶⁴⁰ See infra, Chapter 8. And immediately after President Trump sent his tweet, the violence escalated. Between 2:25 p.m. and 2:28 p.m., rioters breached the East Rotunda doors, other rioters breached the police line in the Capitol Crypt, Vice President Pence had to be evacuated from his Senate office, and Leader McCarthy was evacuated from his Capitol office.⁶⁴¹⁶⁴¹ See supra, Executive Summary.

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¶Evidence developed in the Committee’s investigation showed that the President, when told that the crowd was chanting “Hang Mike Pence,” responded that perhaps the Vice President deserved to be hanged.⁶⁴²⁶⁴² Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), p. 27. And President Trump rebuffed pleas from Leader McCarthy to ask that his supporters leave the Capitol stating, “Well, Kevin, I guess these people are more upset about the election than you are.” After hours of deadly riot, President Trump eventually released a videotaped statement encouraging the crowd to disperse, though openly professing his “love” for the members of the mob and empathizing with their frustration at the “stolen” election. President Trump has since expressed a desire to pardon those involved in the attack.⁶⁴³⁶⁴³ See Mariana Alfaro, “Trump Vows Pardons, Government Apology to Capitol Rioters if Elected,” Washington Post, (Sept. 1, 2022), available at https://www.washingtonpost.com/national-security/2022/09/01/trump-jan-6-rioters-pardon/.

¶Both the purpose and the effect of the President’s actions were to mobilize a large crowd to descend on the Capitol. Several defendants in pending criminal cases identified the President’s allegations about the “stolen election” as the key motivation for their activities at the Capitol. Many of them specifically cited the President’s tweets asking his supporters to come to Washington, DC, on January 6th. For example, one defendant who later pleaded guilty to threatening House Speaker Nancy Pelosi texted a family member on January 6th to say: “[Trump] wants heads and I’m going to deliver.”⁶⁴⁴⁶⁴⁴ Jordan Fischer, Eric Flack, and Stephanie Wilson, “Georgia Man Who Wanted to ‘Remove Some Craniums’ on January 6 Sentenced to More than 2 Years in Prison,” WUSA9, (Dec. 14, 2021), available at https://perma.cc/RSY2-J3RU. Another defendant released a statement through his attorney stating: “I was in Washington, DC on January 6, 2021, because I believed I was following the instructions of former President Trump and he was my President and the commander-in-chief. His statements also had me believing the election was stolen from him.”⁶⁴⁵⁶⁴⁵ Dan Mangan, “Capitol Rioter Garret Miller Says He Was Following Trump’s Orders, Apologizes to AOC for Threat,” CNBC, (Jan. 25, 2021), available at https://www.cnbc.com/2021/01/25/capitol-riots-garret-miller-says-he-was-following-trumps-orders-apologizes-to-aoc.html.

¶As the violence began to subside and law enforcement continued to secure the Capitol, President Trump tweeted again, at 6:01 pm to justify the actions of the rioters: “These are the things and events that happen,” he wrote, when his so-called victory was “so unceremoniously & viciously stripped away. . . .”⁶⁴⁶⁶⁴⁶ Donald J. Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 6:01 p.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22these+are+the+things+and+events%22 (archived). When he wrote those words, he knew exactly what he was doing. Before President Trump issued the tweet, a White House staffer cautioned him that the statement would imply that he “had something to do with the events that happened at the Capitol”—but he tweeted it anyway.⁶⁴⁷⁶⁴⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Nicholas Luna, (Mar. 21, 2022), pp. 166–67. The final words of that tweet leave little doubt about President Trump’s sentiments toward those who invaded the Capitol: “Remember this day forever!”⁶⁴⁸⁶⁴⁸ Donald J. Trump (@realDonaldTrump), Twitter, Jan. 6, 2021 6:01 p.m. ET, available at https://www.thetrumparchive.com/?searchbox=%22these+are+the+things+and+events%22 (archived).

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V. Other Conspiracy Statutes (18 U.S.C. §§ 372 and 2384)

¶Depending on evidence developed by the Department of Justice, the President’s actions with the knowledge of the risk of violence could also constitute a violation of 18 U.S.C. § 372 and § 2384, both of which require proof of a conspiracy. Section 372 prohibits a conspiracy between two or more persons “to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in the discharge of his official duties.”⁶⁴⁹⁶⁴⁹ 18 U.S.C. § 372. Oath Keepers Kelly Meggs, Kenneth Harrelson, and Jessica Watkins were convicted of violating 18 U.S.C. § 372 in connection with the January 6th attack on the Capitol.⁶⁵⁰⁶⁵⁰ See “Leader of Oath Keepers and Oath Keepers Member Found Guilty of Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach,” Department of Justice, (Nov. 29, 2022), available at https://www.justice.gov/opa/pr/leader-oath-keepers-and-oath-keepers-member-found-guilty-seditious-conspiracy-and-other. The Committee believes that former Chief of Staff Mark Meadows (who refused to testify and was held in contempt of Congress) could have specific evidence relevant to such charges, as may witnesses who invoked their Fifth Amendment rights against self-incrimination before this Committee.

¶Section 2384, the seditious conspiracy statute, prohibits “conspir[acy] to overthrow, put down, or to destroy by force the Government of the United States . . . or to oppose by force the authority thereof, or by force to prevent, hinder or delay the execution of any law of the United States . . . .”⁶⁵¹⁶⁵¹ 18 U.S.C. § 2384. To establish a violation of section 2384, the government must establish (1) a conspiracy, (2) to overthrow, put down, or destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof. See United States v. Khan, 461 F.3d 477, 487 (4th Cir. 2006).Show full note A jury has already determined beyond a reasonable doubt that a conspiracy existed under section 2384, as the leader of the Oath Keepers and at least one other individual were convicted of seditious conspiracy under section 2384 for their actions related to the attack on the Capitol.⁶⁵²⁶⁵² “Leader of Oath Keepers and Oath Keepers Member Found Guilty of Seditious Conspiracy and Other Charges Related to U.S. Capitol Breach,” Department of Justice, (Nov. 29, 2022), available at https://www.justice.gov/opa/pr/leader-oath-keepers-and-oath-keepers-member-found-guilty-seditious-conspiracy-and-other. A trial regarding a series of other “Proud Boy” defendants may also address similar issues.⁶⁵³⁶⁵³ “Leader of Proud Boys and Four Other Members Indicted in Federal Court for Seditious Conspiracy and Other Offenses Related to U.S. Capitol Breach,” Department of Justice, (June 6, 2022), available at https://www.justice.gov/opa/pr/leader-proud-boys-and-four-other-members-indicted-federal-court-seditious-conspiracy-and.

¶The Department of Justice, through its investigative tools that exceed those of this Committee, may have evidence sufficient to prosecute President Trump under sections 372 and 2384. Accordingly, we believe sufficient evidence exists for a criminal referral of President Trump under these two statutes.

VI. The Committee’s Concerns Regarding Possible Obstruction of its Investigation

¶The Committee has substantial concerns regarding potential efforts to obstruct its investigation, including by certain counsel (some paid by groups connected to the former President) who may have advised clients to provide false or misleading testimony to the Committee.⁶⁵⁴⁶⁵⁴ See supra, Executive Summary. Such actions could violate 18 U.S.C. §§ 1505, 1512. The Committee is aware that both the U.S. Department of Justice and the Fulton County District Attorney’s Office have already obtained information relevant to these matters, including from the Committee directly. We urge the Department of Justice to examine the facts to discern whether prosecution is warranted. The Committee’s broad concerns regarding obstruction and witness credibility are addressed in the Executive Summary to this Report.

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VII. Accountability for Those Who Plotted Unlawfully to Overturn the Election is Critical.

¶To date, the Justice Department has pursued prosecution of hundreds of individuals who planned and participated in the January 6th invasion of and attack on our Capitol. But the Department has not yet charged individuals who engaged in the broader plan to overturn the election through the means discussed in this Report. The Committee has concluded that it is critical to hold those individuals accountable as well, including those who worked with President Trump to create and effectuate these plans.

¶In his speech from the Ellipse on January 6th, President Trump recited a host of election fraud allegations he knew to be false, and then told tens of thousands of his angry supporters this:

And fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules. So I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.⁶⁵⁵⁶⁵⁵ Brian Naylor, “Read Trump’s Jan. 6 Speech, A Key Part of Impeachment Trial,” NPR, (Feb. 10, 2021), available at https://www.npr.org/2021/02/10/966396848/read-trumps-jan-6-speech-a-key-part-of-impeachment-trial.

¶The meaning of President Trump’s comments was sufficiently clear then, but he recently gave America an even more detailed understanding of his state of mind. Trump wrote that allegations of “massive fraud” related to the 2020 election “allow[] for the termination of all rules, regulations and articles, even those found in the Constitution.”⁶⁵⁶⁶⁵⁶ Kristen Holmes, “Trump Calls for the Termination of the Constitution in Truth Social Post,” CNN, (Dec. 4, 2022), available at https://www.cnn.com/2022/12/03/politics/trump-constitution-truth-social/index.html. And President Trump considered pardoning those involved in the attack and has since expressed a desire to pardon them—and even give them an apology—if he returns to the Oval Office.⁶⁵⁷⁶⁵⁷ See Mariana Alfaro, “Trump Vows Pardons, Government Apology to Capitol Rioters if Elected,” Washington Post, (Sept. 1, 2022), available at https://www.washingtonpost.com/national-security/2022/09/01/trump-jan-6-rioters-pardon/.

¶In the Committee’s judgment, based on all the evidence developed, President Trump believed then, and continues to believe now, that he is above the law, not bound by our Constitution and its explicit checks on Presidential authority. This recent Trump statement only heightens our concern about accountability. If President Trump and the associates who assisted him in an effort to overturn the lawful outcome of the 2020 election are not ultimately held accountable under the law, their behavior may become a precedent, and invitation to danger, for future elections. A failure to hold them accountable now may ultimately lead to future unlawful efforts to overturn our elections, thereby threatening the security and viability of our Republic.

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VIII. Referral of Members to the House Ethics Committee for Failure to Comply with Subpoenas

¶During the course of the Select Committee’s investigation of President Trump’s efforts to subvert the election, the Committee learned that various Members of Congress had information relevant to the investigation. Accordingly, the Committee wrote letters to a number of Members involved in that activity inviting them to participate voluntarily in the Select Committee’s investigation. None of the members was willing to provide information, which forced the Select Committee to consider alternative means of securing evidence about the conduct of these Members and the information they might have. On May 12, 2022, the Select Committee subpoenaed several members of Congress—including House Minority Leader Kevin McCarthy, Representative Jim Jordan, Representative Scott Perry, and Representative Andy Biggs—to obtain information related to the Committee’s investigation.

¶This was a significant step, but it was one that was warranted by the certain volume of information these Members possessed that was relevant to the Select Committee’s investigation, as well as the centrality of their efforts to President Trump’s multi-part plan to remain in power.

¶Representative McCarthy, among other things, had multiple communications with President Trump, Vice President Pence, and others on and related to January 6th. For example, during the attack on the Capitol, Representative McCarthy urgently requested that the former President issue a statement calling off the rioters, to which President Trump responded by “push[ing] back” and said: “Well, Kevin, I guess these people are more upset about the election than you are.”⁶⁵⁸⁶⁵⁸ See infra, Chapter 7. And, after the attack, Representative McCarthy spoke on the House floor and said that, “[t]here is absolutely no evidence” that Antifa caused the attack on the Capitol and instead called on President Trump to “accept his share of responsibility” for the violence.⁶⁵⁹⁶⁵⁹ 167 Cong. Rec. H171-72 (daily ed. Jan. 13, 2021). As noted above, Representative McCarthy privately confided in colleagues that President Trump accepted some responsibility for the attack on the Capitol.⁶⁶⁰⁶⁶⁰ See supra, Executive Summary.

¶Representative Jordan was a significant player in President Trump’s efforts. He participated in numerous post-election meetings in which senior White House officials, Rudolph Giuliani, and others, discussed strategies for challenging the election, chief among them claims that the election had been tainted by fraud. On January 2, 2021, Representative Jordan led a conference call in which he, President Trump, and other Members of Congress discussed strategies for delaying the January 6th joint session. During that call, the group also discussed issuing social media posts encouraging President Trump’s supporters to “march to the Capitol” on the 6th.⁶⁶¹⁶⁶¹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), pp. 84–87. An hour and a half later, President Trump and Representative Jordan spoke by phone for 18 minutes.⁶⁶²⁶⁶² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R000008962_0009 (January 2, 2021, White House Presidential Call Log). The day before January 6th, Representative Jordan texted Mark Meadows, passing along advice that Vice President Pence should “call out all the electoral votes that he believes are unconstitutional as no electoral votes at all.”⁶⁶³⁶⁶³ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM014864 (January 5, 2021, text message from Rep. Jim Jordan to Mark Meadows describing the Vice President’s actions on January 6th). He spoke with President Trump by phone at least twice on January 6th, though he has provided inconsistent public statements about how many times they spoke and what they discussed.⁶⁶⁴⁶⁶⁴ See Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), P-R000255-259 (January 6, 2021, Presidential Daily Diary); Felicia Somnez, “Rep. Jim Jordan Tells House Panel He Can’t Recall How Many Times He Spoke with Trump on Jan. 6,” Washington Post, (Oct. 20, 2021), available at https://www.washingtonpost.com/politics/jordan-trump-calls-capitol-attack/2021/10/20/1a570d0e-31c7-11ec-9241-aad8e48f01ff_story.html.Show full note He also received five calls from Rudolph Giuliani that evening, and the two connected at least twice, at 7:33 p.m. and 7:49 p.m.⁶⁶⁵⁶⁶⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol, (AT&T Production, Feb. 9, 2022). During that time, Giuliani has testified, he was attempting to reach Members of Congress after the joint session resumed to encourage them to continue objecting to Joe Biden’s electoral votes.⁶⁶⁶⁶⁶⁶ Select Committee to Investigate the January 6th Attack on the United States Capitol, Deposition of Rudolph Giuliani, (May 20, 2022), pp. 205–07. And, in the days following January 6th, Representative Jordan spoke with White House staff about the prospect of Presidential pardons for Members of Congress.⁶⁶⁷⁶⁶⁷ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (May 17, 2022), p. 106.

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¶Like Representative Jordan, Representative Perry was also involved in early post-election messaging strategy. Both Representative Jordan and Representative Perry were involved in discussions with White House officials about Vice President Pence’s role on January 6th as early as November 2020.⁶⁶⁸⁶⁶⁸ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), pp. 72–73. Representative Perry was present for conversations in which the White House Counsel’s Office informed him and others that President Trump’s efforts to submit fake electoral votes were not legally sound.⁶⁶⁹⁶⁶⁹ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (Mar. 7, 2022), pp. 66–67. But perhaps most pivotally, he was involved in President Trump’s efforts to install Jeffrey Clark as the Acting Attorney General in December 2020 and January 2021. Beginning in early December 2020, Representative Perry suggested Clark as a candidate to Mark Meadows,⁶⁷⁰⁶⁷⁰ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), pp. 62–64. then introduced Clark to President Trump.⁶⁷¹⁶⁷¹ See Sarah Lynch and David Shepardson, “Watchdog to Probe if Justice Dept. Officials Improperly Tried to Alter 2020 Election,” Reuters, (Jan. 25, 2021), available at https://www.reuters.com/article/us-usa-trump-justice/watchdog-to-probe-if-justice-dept-officials-improperly-tried-to-alter-2020-election-idUSKBN29U21E (“Throughout the past four years, I worked with Assistant Attorney General Clark on various legislative matters. When President Trump asked if I would make an introduction, I obliged,’ Perry said in a statement.”).Show full note In the days before January 6th, Representative Perry advocated for President Trump to speak at the Capitol during the joint session, speaking to Mark Meadows on at least one occasion about it.⁶⁷²⁶⁷² Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (June 20, 2022), p. 48. He was also a participant in the January 2, 2021, call in which Representative Jordan, President Trump, and others discussed issuing social media posts to encourage Trump supporters to march to the Capitol on January 6th.⁶⁷³⁶⁷³ Select Committee to Investigate the January 6th Attack on the United States Capitol, Transcribed Interview of Cassidy Hutchinson, (Feb. 23, 2022), p. 45. After January 6th, Representative Perry reached out to White House staff asking to receive a Presidential pardon.⁶⁷⁴⁶⁷⁴ Select Committee to Investigate the January 6th Attack on the United States Capitol, Continued Interview of Cassidy Hutchinson, (May 17, 2022), pp. 106–07.

¶Representative Biggs was involved in numerous elements of President Trump’s efforts to contest the election results. As early as November 6, 2020, Representative Biggs texted Mark Meadows, urging him to “encourage the state legislatures to appoint [electors].”⁶⁷⁵⁶⁷⁵ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011449. In the following days, Representative Biggs told Meadows not to let President Trump concede his loss.⁶⁷⁶⁶⁷⁶ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Mark Meadows Production), MM011506, (November 2020 text messages from Rep. Andy Biggs to Mark Meadows). Between then and January 6th, Representative Biggs coordinated with Arizona State Representative Mark Finchem to gather signatures from Arizona lawmakers endorsing fake Trump electors.⁶⁷⁷⁶⁷⁷ Josh Kelety, “Congressman Andy Biggs Coordinated Efforts with Mark Finchem before Capitol Riot,” Phoenix New Times, (Feb. 18, 2021), available at https://www.phoenixnewtimes.com/news/congressman-andy-biggs-coordinated-with-mark-finchem-before-capitol-riot-11532527. He also contacted fake Trump electors in at least one State seeking evidence related to voter fraud.⁶⁷⁸⁶⁷⁸ Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Jim DeGraffenreid Production), DEGRAFFENREID 000554 (December 18, 2020, text messages between James DeGraffenreid, a Nevada fake elector for Trump, and another remarking that “Andy Biggs . . . has reached out to NV to ask about our evidence”).

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¶To date, none of the subpoenaed Members has complied with either voluntary or compulsory requests for participation.

¶Representative McCarthy initially responded to the Select Committee’s subpoena in two letters on May 27 and May 30, 2022, in which he objected to the Select Committee’s composition and validity of the subpoena and offered to submit written interrogatories in lieu of deposition testimony. Although the Select Committee did not release Representative McCarthy from his subpoena obligations, Representative McCarthy failed to appear for his scheduled deposition on May 31, 2022. The Select Committee responded to Representative McCarthy’s letters this same day, rejecting his proposal to participate via written interrogatories and compelling his appearance for deposition testimony no later than June 11, 2022. Although Representative McCarthy again responded via letter on June 9, 2022, he did not appear for deposition testimony on or before the specified June 11, 2022, deadline.

¶Representative Jordan also responded to the Select Committee’s subpoena just before his scheduled deposition in a letter on May 25, 2022, containing a variety of objections. Representative Jordan also requested material from the Select Committee, including all materials referencing him in the Select Committee’s possession and all internal legal analysis related to the constitutionality of Member subpoenas. Although the Select Committee did not release Representative Jordan from his subpoena obligations, Representative Jordan failed to appear for his scheduled deposition on May 27, 2022. On May 31, 2022, the Select Committee responded to the substance of Representative Jordan’s May 25th letter and indicated that Representative Jordan should appear for deposition testimony no later than June 11, 2022. On June 9, 2022, Representative Jordan again wrote to reiterate the points from his May 25th letter. That same day, Representative Jordan sent out a fundraising email with the subject line: “I’VE BEEN SUBPOENED.”⁶⁷⁹⁶⁷⁹ Audrey Fahlberg, “January 6 Hearings Become Fundraising Fodder,” The Dispatch, (July 7, 2022), available at https://thedispatch.com/p/january-6-hearings-become-fundraising; Archive of Political Emails, Jim Jordan, “The January 6th Committee Is After Me,” June 9, 2022 12:41 p.m., available at https://politicalemails.org/messages/686023. Representative Jordan did not appear before the Select Committee on or before the June 11, 2022, deadline.

¶Representative Perry likewise responded to the Select Committee’s subpoena on May 24, 2022, in a letter, “declin[ing] to appear for deposition” and requesting that the subpoena be “immediately withdrawn.”⁶⁸⁰⁶⁸⁰ John Rowley III to the Honorable Bennie G. Thompson re: “Subpoena to Representative Scott Perry,” (May 24, 2022), available at https://www.documentcloud.org/documents/22061774-scott-perry-j6-response. Although the Select Committee did not release Representative Perry from his subpoena obligations, Representative Perry failed to appear on May 26, 2022, for his scheduled deposition. Representative Perry sent a second letter to the Select Committee on May 31, 2022, with additional objections. That same day, the Select Committee responded to Representative Perry’s letters and stated that he should appear before the Select Committee no later than June 11, 2022, for deposition testimony. Representative Perry responded via letter on June 10, 2022, maintaining his objections. He did not appear before the June 11, 2022, deadline.

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¶Representative Biggs issued a press release on the day the Select Committee issued its subpoena, calling the subpoena “illegitimate” and “pure political theater.” The day before his scheduled deposition, Representative Biggs sent a letter to the Select Committee with a series of objections and an invocation of Speech or Debate immunity. Although the Select Committee did not release Representative Biggs from his subpoena obligations, Representative Biggs did not appear for his scheduled deposition on May 26, 2022. On May 31, 2022, the Select Committee responded to the substance of Representative Biggs’s May 25th letter and indicated that Representative Biggs should appear for deposition testimony no later than June 11, 2022. Although Representative Biggs responded with another letter on June 9th, he did not appear before the June 11, 2022, deadline.

¶Despite the Select Committee’s repeated attempts to obtain information from these Members and the issuance of subpoenas, each has refused to cooperate and failed to comply with a lawfully issued subpoena. Accordingly, the Select Committee is referring their failure to comply with the subpoenas issued to them to the Ethics Committee for further action. To be clear, this referral is only for failure to comply with lawfully issued subpoenas.

¶The Rules of the House of Representatives make clear that their willful noncompliance violates multiple standards of conduct and subjects them to discipline. Willful non-compliance with compulsory congressional committee subpoenas by House Members violates the spirit and letter of House rule XXIII, clause 1, which requires House Members to conduct themselves “at all times in a manner that shall reflect creditably on the House.” As a previous version of the House Ethics Manual explained, this catchall provision encompasses “‘flagrant’ violations of the law that reflect on ‘Congress as a whole,’ and that might otherwise go unpunished.”⁶⁸¹⁶⁸¹ Committee on Standards of Official Conduct, House Ethics Manual, p. 13 (2008). The subpoenaed House Members’ refusal to comply with their subpoena obligations satisfies these criteria. A House Member’s willful failure to comply with a congressional subpoena also reflects discredit on Congress. 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.

¶For these reasons, the Select Committee refers Leader McCarthy and Representatives Jordan, Perry, and Biggs for sanction by the House Ethics Committee for failure to comply with subpoenas. The Committee also believes that each of these individuals, along with other Members who attended the December 21st planning meeting with President Trump at the White House,⁶⁸²⁶⁸² Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (National Archives Production), 076P-R001080 (December 21, 2020, WAVES records showing Representatives Babin, Biggs, Brooks, Gaetz, Gohmert, Gosar, Taylor Greene, Harris, Hice, Jordan, and Perry entering the White House). should be questioned in a public forum about their advance knowledge of and role in President Trump’s plan to prevent the peaceful transition of power.

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