The J6 Committee's report, summarized.

December 20, 2022

          The January 6th Committee held its final public hearing on Monday. Although the hearing was devoted to the business of approving criminal referrals to the DOJ, the hearing was nonetheless a powerful recap of the Committee’s findings. As in all prior hearings, the Committee acted professionally and respectfully but with the urgency demanded in response to an attempted insurrection.

          The structure of Monday’s hearing was as follows:

• The Committee voted to make four referrals to the DOJ to investigate Donald Trump (detailed below).

• The Committee released a 154-page report that is an “executive summary” highlighting the evidence supporting the criminal referrals.

• On Wednesday, the Committee will release its “full report” (1,000 pages+), which will include an appendix of supporting documents, emails, texts, and transcripts of testimony.

The criminal referrals.

          The Committee referred four crimes to the DOJ for investigation, identifying Donald Trump as the subject of each referral. Trump’s attorney John Eastman was mentioned prominently in the referrals. In each referral, the Committee noted that the DOJ was in a better position than the Committee to investigate co-conspirators. During the final public hearing and in the executive summary, potential co-conspirators identified by name included Jeffrey Clark (DOJ), Rudy Giuliani, and Mark Meadows (Chief of Staff).

          The referrals relate to the following four crimes:

• Obstruction of an official proceeding to prevent Congress’s certification of the election. (18 U.S.C. § 1512(c))

• Conspiracy to defraud the US to overturn the election. (18 U.S.C. § 371)

• Conspiracy to make false statements relating to false electors. (18 U.S.C. §§ 371, 1001)

• Inciting, assisting, or providing aid and comfort to an insurrection. (18 U.S.C. § 2383)

In addition, the Committee suggested that DOJ investigate the following crimes:

• “Other conspiracies” relating to the prevention of someone from “accepting or holding office” and blocking the enforcement of US law. (18 U.S.C. §§ 372 and 2384)

• Obstruction of an investigation by advising witnesses to lie. (18 U.S.C. §§ 1505, 1512).

Referrals to the House Ethics Committee.

          The Committee referred four members of Congress to the House Ethics Committee for willfully refusing to comply with subpoenas issued by the January 6th Committee. Those members are House Minority Leader Kevin McCarthy, Representative Jim Jordan, Representative Scott Perry, and Representative Andy Biggs.

How to read the summary report.

          If you are like many Americans, you intend to read the 154-page summary and the 1,000-page final report—but will likely never find the time to do so. So, I have several suggestions. First, I recommend reading pages 4 through 6 of the summary report, which is here: Select Committee to Investigate the January 6th Attack, Introductory Material to the Final Report of the Select Committee.

          Or, you can read the excellent summary and analysis by Sean Collins in Vox,  Read the January 6 committee’s damning summary of Trump’s election subversion efforts.

          If you don’t want to do either of the above, read my 60,000-foot factual summary in the next section.

60,000-foot factual summary.

          If you don’t want to read the report, here is my high-level version of the factual predicate for the criminal referrals to the DOJ.

• Beginning on election night, Trump disseminated false information to overturn the election and solicit donations from his base. These false claims provoked the violence on January 6th.

• Trump violated his obligation to “take care that the laws be faithfully executed” by plotting to overturn the 2020 election.

• Trump illegally pressured Mike Pence to refuse to count electoral ballots on January 6th.

• Trump attempted to corrupt the DOJ by soliciting officials to make false statements to swing states about fraud in the election; when that effort failed, Trump attempted to appoint Jeffrey Clark as acting Attorney General because of his willingness to make those false statements.

• Trump pressured election officials and legislators in swing states to change their election results.

• Trump oversaw an effort to obtain and transmit false electoral certificates to Congress and the National Archive.

• Trump pressured members of Congress to object to valid slates of electors from several states.

• Trump verified false information filed in federal court.

• Trump summoned thousands of angry supporters to Washington, D.C., on January 6th with false claims of election fraud.

• While the violent attack on the Capitol was ongoing, Trump sent a tweet condemning Vice President Mike Pence.

• Trump delayed telling the violent mob to cease their attack on the Capitol and disperse. Trump’s failure to act for 187 minutes extended the violence at the Capitol and delayed the count of the electoral ballots.

• Trump had the sole authority to direct deployment of the National Guard to stop the violent assault on the Capitol but refused to do so.

• Each of the above steps was taken in furtherance of a plan to overturn the lawful results of the 2020 election.

Surprises in the report.

          There were several surprises in the report.

          First, the Committee strongly suggested that attorneys working for Trump (or his campaign) advised witnesses to lie by falsely claiming they could not remember facts.

          Second, the Committee stated that one witness had been promised employment that would make her “financially very comfortable” as the date of her testimony approached. The offer of employment was withdrawn in advance of the witness’s testimony after media reports of the witness’ unfavorable testimony began to circulate.

          Third, the report called into question the truthfulness of two witnesses. As to the former Secret Service agent who became a member of the White House staff, Tony Ornato, the Committee has significant concerns about his testimony on two critical topics. The first relates to Trump’s effort to “lunge” at a Secret Service driver to force the vehicle to go to the Capitol. The second relates to Ornato’s knowledge of threats of violence and the transmittal of those reports to Trump. The Committee will release Ornato’s November Transcript “so the public can review his testimony on these topics.” Likewise, the Committee doubts the truthfulness of testimony provided by Kayleigh McEnany, Trump’s Press Secretary.

          Finally, and most importantly, Hope Hicks testified that she

“suggested … several times” on the preceding days (January 4th and January 5th) that President Trump publicly state that January 6th must remain peaceful and that he had refused her advice to do so.

          The testimony by Hicks that Trump refused to call on his supporters to remain peaceful on January 6th creates a strong inference that Trump wanted his supporters to resort to violence to advance his efforts to delay the electoral count on January 6th.

What’s next?

           Although the criminal referrals by the J6 Committee are advisory only, they create immense moral pressure on special counsel Jack Smith to seriously consider the evidence collected and judgments made by the Committee.

          The obvious question is, “When will Jack Smith seek indictments?” That is a difficult question to answer. Is Smith at the beginning of an investigation or near the end? Does he believe that he must indict Trump only once and include all indictable offenses? Or are there sufficiently distinct offenses that can be charged and tried separately? For example, must the DOJ simultaneously charge Trump for theft of defense secrets and the effort to overturn the 2020 election? If Smith concludes that the answer to that question is, “No,” the defense secrets case could be filed early next year. The insurrection case is more complex and time-consuming.

          Although indicting and trying Trump is necessary to hold Trump fully accountable for his crimes, the outstanding work of the J6 Committee has exposed Trump’s criminal conduct to the American public. For that measure of success, we should be grateful for the exceptional work of the Committee and the sacrifices of its members, including GOP Reps. Liz Cheney and Adam Kinzinger, and Democratic Rep. Elaine Luria, each of whom lost their seat in Congress because of their service on the Committee. Stay tuned for more later this week!

Next up: Trump’s tax returns?

          It is possible that the House Ways and Means Committee will vote on Tuesday to release Trump’s tax returns to the public. But that result is not assured. The Committee received the returns from the Treasury Department under a 1924 law that allows the Committee to review the returns of any taxpayer if necessary to consider legislative changes. See generally, Here’s why Congress can obtain Donald Trump’s tax returns - The Washington Post. The 1924 law also provides that Congress can inspect any or all of the returns “at such times and in such manner as it may determine.” The phrase “in such manner” is broad enough to include reviewing the returns on the floor of the House or Senate.

          In 1973, the Senate’s Joint Committee on Taxation obtained President Nixon’s tax returns and promptly released them to every member of Congress by attaching them to a report. See the WaPo article above. If the current Ways & Means Committee chooses to follow that precedent, the cat will be out of the proverbial bag.

          Jenner Rubin believes releasing Trump’s returns will be a “petty” political act. See Jennifer Rubin, Opinion | Democrats are entitled to release Trump’s tax returns. They shouldn’t. Rubin makes a strong case that releasing Trump’s tax returns would violate the purpose for which the Ways & Means Committee secured access to the returns.

          I admire Rubin greatly but disagree with her on this point. As Rubin notes, Trump used bad-faith litigation to “run out the clock” on Congress’s effort to examine his returns and enact reforms:

Democrats’ purpose to evaluate the IRS might have been valid at one point, but Trump did, in fact, run out the clock.

          When Republicans gain control of the House Ways & Means Committee, they will return Trump’s tax returns to the Treasury Department, where they will never again see the light of day—thereby rewarding Trump’s litigation delay strategy. One way to prevent Trump from defeating the statutory right of Congress to review his returns is to make them public before the GOP takes control of the Ways & Means Committee. The Committee should, therefore, release the returns while they can.

          [Yes, yes! I know that the Senate Finance Committee can make the same request in the next session of Congress when, presumably, Democrats will have a majority in the Senate. But who among us doubts that Trump would not file new legal challenges to the request by the Senate Finance Committee? Such litigation would be in bad faith and should subject Trump and his lawyers to sanctions, but that hasn’t stopped them from filing frivolous lawsuits previously.]

Arizona Court dismisses most of Kari Lake’s claims.

          Marc Elias’s Democracy Docket has announced that an Arizona judge has granted a motion to dismiss eight of ten claims filed by Kari Lake that challenged her loss in the Arizona gubernatorial election in 2022. The order dismissing the claims is here: HERE. Lake’s remaining two claims will be the subject of an expedited trial that must be completed by January 2, 2023.

          Because the judge was ruling on a motion to dismiss (before the judge has been presented with evidence), he was required to deny the motion to dismiss unless there was “no interpretation of the facts alleged in the complaint” that would entitle Lake to the relief she seeks. In other words, it looks bad for Lake at trial, very. To prevail, she must prove that election officials intentionally sought to cause the printers at polling stations to malfunction. That isn’t going to happen. In short order, Kari Lake’s lawsuit will be dismissed in its entirety, with a favorable judgment entered for Democrat Katie Hobbs.

Concluding Thoughts.

          More is going on, but I am already three pages over my Managing Editor’s guideline for newsletter length. Let me close on this thought: Do not feel overwhelmed by the detail of the J6 Committee’s report. We will have plenty of time to review the details in the coming weeks. The critical point is this: A congressional committee took an unprecedented step in challenging the criminal conduct of a former president. The action of the Committee will serve as a warning to all future presidents:

Do not be fooled by the trappings of power and feckless advisers who indulge your every whim while you remain in office. You will be out of office one day, an ordinary citizen subject to indictment like every other American. Reflect on the fate of Trump as you consider the line between partisan politics and criminal conduct. Trump badly misjudged where that line was drawn and will pay the price.

          It is now up to special counsel Jack Smith to drive the lesson home by indicting and convicting Trump of crimes that will subject him to substantial time in prison. With that punctuation, the report of the J6 Committee will be a strong but necessary tonic for all future presidents. If that happens, democracy will be more secure for generations to come.

          Talk to you tomorrow!