House January 6 Select Committee Outlines Potential Criminal Referrals Against Donald Trump

On January 6th, the House created a special select committee who listed criminal accusations against Donald Trump in regards to his endeavors to hamper the congressional confirmation of the 2020 election, which specialists consider the Justice Department could prosecute him on should they decide to indict the former US president.

At its final gathering, the panel agreed to recommend the prosecution of Trump for four likely offenses on Monday: impeding an official proceeding, conspiracy to dupe the US, conspiracy to utter false declarations, and instigating an insurrection.

The criminal referrals are mainly inside the realms of theory as Congress can not oblige the justice department to push forward with formal accusations, and prosecutors have, for some time, been leading their own separate probe into the Capitol attack and Trump's attempts to negate his loss.

The findings of the special counsel provided an assessment of the alleged criminal behavior and documentation that was quite similar to the internal prosecution records made by the department before indictments. This was indicated by two former US attorneys, and included a number of laws which are likely to be considered by the newly appointed special counsel.

The first referral concerning obstruction of an official proceeding was believed to be the most probable charge that federal prosecutors might contemplate regarding Trump's attempts to impede the 6 January certification of Joe Biden's election win.

As outlined by the panel, Trump seemingly met the criteria for the offense – supposedly endeavoring to “impede any official proceeding” in a “corrupt” way – when he pressed his vice-president, Mike Pence, to reject electoral college votes for Biden in spite of knowing it was unlawful.

Moreover, Trump could be prosecuted for developing fictitious electoral college slates since they were eventually done as an excuse for Pence to disqualify Biden votes, even though Trump’s endeavor to get Pence to avoid certification was sufficient to warrant a charge.

The panel proposed that a possible charge that could be considered by federal prosecutors is conspiracy to defraud, which does not necessarily need to be linked to an underlying offense apart from impairing a lawful government function via deceptive tactics. This partially overlaps with the first referral, with the experts noting that Trump's attempt to halt the 6 January certification was done "dishonestly," since the plan to get the Vice President to override Biden’s electoral success was “manifestly illegal”. In the past, the justice department has explored the conspiracy to defraud statute, made notably by Robert Mueller, but it is uncertain whether they would utilize it against Trump, since the Supreme Court has interpreted the stipulation more tightly in regard to money, instead of public corruption.

As for the third referral, conspiracy to make a false statement could be appropriate if the justice department could confirm Trump had a part in the scheme to present false electoral slates to both Congress and the National Archives.

According to the select committee, the third referral for criminal conspiracy could be tricky to prove, as it would necessitate demonstrating that Trump was personally part of the plot and understood it was meant to prompt unlawful conduct on the part of Pence. The Justice Department would need to oppose Trump’s assurance that the forged electors were not for unlawful purposes, but just a backup plan to form alternative slates should Republican statehouses declare replacing Biden electors with Trump electors. The fourth referral, for incitement of an uprising, is the most improbable charge for the department to prosecute, though the statute necessitates prosecutors to demonstrate that Trump aided unlawful activity related to 6 January. Section 1001 of the criminal code’s false statement statute is frequently thought of as lying to law enforcement, but it does include language about producing or employing documents recognized by the conspirators to be fake.

At stake is the likelihood that Trump would likely assert that both his notorious tweet which asked supporters to demonstrate outside of the Capitol - "Big protest in D.C. on January 6th,” Trump wrote. “Be there, will be wild!” - and his address at the Ellipse rally could be seen as a first amendment right.

The legitimate basis for prompting or participating in an insurgency comes from the momentous 1969 Brandenburg v Ohio Supreme Court decision that established the government is not allowed to restrict speech unless it was intended to incite imminent defiance of the law.

Should it not be proven that Trump was informed of an arrangement, either by the Proud Boys or Oath Keepers far-right extremist groups, to raid the Capitol when he gave the tweet on 19 December 2019 or during his “fight like hell” utterance during his Ellipse speech, the department may have difficulty following through with the charges, according to the experts.