What Do the Jan. 6 Committee Criminal Referrals Mean

Historic Criminal Referrals. The cover page of the Select Committee report on the January 6th attack on the United States Capitol. White report on a blue background.

For the first time in history, a Congressional Committee is asking Federal Prosecutors to charge a former president with committing four felonies and to investigate him for two additional charges.

After an 18-month investigation, lawmakers are taking this unprecedented step.

The Jan. 6 Congressional Committee investigating the attack on the U.S. Capitol almost two years ago says they have enough evidence for the Department of Justice to charge a former president with four felony counts.

The former president is Donald Trump; here are the charges the Jan. 6 Committee is referring to DOJ.

I have copied and pasted a portion of the referrals.

The following text is from the official document.

“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.”594 Sufficient evidence exists of one or more potential violations of this statute for a criminal referral of President Trump and others.595 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).

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.

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

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.”632 The Committee recognizes that §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 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.”633 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 been in office at the time.”

The Jan. 6 Committee also recommended that DOJ investigate the former president for two additional charges.

They are:

Violation of the Seditious Conspiracy Statute.

Obstruction of an investigation.

The Committee also recommended that charges be filed against hundreds of individuals who planned and participated in the invasion and attack on the Capitol.

And these Congress members are being referred to the House Ethics Committee for Failure to Comply with Subpoenas.

House Minority Leader Kevin McCarthy, Representative Jim Jordan, Representative Scott Perry, and Representative Andy Biggs—to obtain information related to the Committee’s investigation.

The Department of Justice has appointed a Special Counsel to investigate former president Trump’s illegal possession of classified documents. DOJ is also investigating Trump on charges related to the insurrection.

The entire report from the Jan. 6 Committee will be released on Wednesday, December 21. The Committee also plans to release never-seen videos and audio files.

Additional Documents

SEVENTEEN SPECIFIC FINDINGS FROM THE COMMITTEE

This Report supplies an immense volume of information and testimony assembled through the Select Committee’s investigation, including information obtained following litigation in Federal district and appellate courts, as well as in the U.S. Supreme Court.

Based upon this assembled evidence, the Committee has reached a series of specific findings, including the following:

  1. Beginning election night and continuing through January 6th and thereafter, Donald Trump purposely disseminated false allegations of fraud related to the 2020 Presidential election in order to aid his effort to overturn the election and for purposes of soliciting contributions. These false claims provoked his supporters to violence on January 6th.
  2. Knowing that he and his supporters had lost dozens of election lawsuits, and despite his own senior advisors refuting his election fraud claims and urging him to concede his election loss, Donald Trump refused to accept the lawful result of the 2020 election. Rather than honor his constitutional obligation to “take Care that the Laws be faithfully executed,” President Trump instead plotted to overturn the election outcome.
  3. Despite knowing that such an action would be illegal, and that no State had or would submit an altered electoral slate, Donald Trump corruptly pressured Vice President Mike Pence to refuse to count electoral votes during Congress’s joint session on January 6th.
  4. Donald Trump sought to corrupt the U.S. Department of Justice by attempting to enlist Department officials to make purposely false statements and thereby aid his effort to overturn the Presidential election. After that effort failed, Donald Trump offered the position of Acting Attorney General to Jeff Clark knowing that Clark intended to disseminate false information aimed at overturning the election.
  5. Without any evidentiary basis and contrary to State and Federal law, Donald Trump unlawfully pressured State officials and legislators to change the results of the election in their States.
  6. Donald Trump oversaw an effort to obtain and transmit false electoral certificates to Congress and the National Archives.
  7. Donald Trump pressured Members of Congress to object to valid slates of electors from several States.
  8. Donald Trump purposely verified false information filed in Federal court.
  9. Based on false allegations that the election was stolen, Donald Trump summoned tens of thousands of supporters to Washington for January 6th. Although these supporters were angry and some were armed, Donald Trump instructed them to march to the Capitol on January 6th to “take back” their country.
  10. Knowing that a violent attack on the Capitol was underway and knowing that his words would incite further violence, Donald Trump purposely sent a social media message publicly condemning Vice President Pence at 2:24 p.m. on January 6th.
  11. Knowing that violence was underway at the Capitol, and despite his duty to ensure that the laws are faithfully executed, Donald Trump refused repeated requests over a multiple hour period that he instruct his violent supporters to disperse and leave the Capitol, and instead watched the violent attack unfold on television. This failure to act perpetuated the violence at the Capitol and obstructed Congress’s proceeding to count electoral votes.
  12. Each of these actions by Donald Trump was taken in support of a multi-part conspiracy to overturn the lawful results of the 2020 Presidential election.
  13. The intelligence community and law enforcement agencies did successfully detect the planning for potential violence on January 6th, including planning specifically by the Proud Boys and Oath Keeper militia groups who ultimately led the attack on the Capitol. As January 6th approached, the intelligence specifically identified the potential for violence at the U.S. Capitol. This intelligence was shared within the executive branch, including with the Secret Service and the President’s National Security Council.
  14. Intelligence gathered in advance of January 6th did not support a conclusion that Antifa or other left-wing groups would likely engage in a violent counterdemonstration, or attack Trump supporters on January 6th. Indeed, intelligence from January 5th indicated that some left-wing groups were instructing their members to “stay at home” and not attend on January 6th.20 Ultimately, none of these groups was involved to any material extent with the attack on the Capitol on January 6th.
  15. Neither the intelligence community nor law enforcement obtained intelligence in advance of January 6th on the full extent of the ongoing planning by President Trump, John Eastman, Rudolph Giuliani and their associates to overturn the certified election results. Such agencies apparently did not (and potentially could not) anticipate the provocation President Trump would offer the crowd in his Ellipse speech, that President Trump would “spontaneously” instruct the crowd to march to the Capitol, that President Trump would exacerbate the violent riot by sending his 2:24 p.m. tweet condemning Vice President Pence, or the full scale of the violence and lawlessness that would ensue. Nor did law enforcement anticipate that President Trump would refuse to direct his supporters to leave the Capitol once violence began. No intelligence community advance analysis predicted exactly how President Trump would behave; no such analysis recognized the full scale and extent of the threat to the Capitol on January 6th.
  16. Hundreds of Capitol and DC Metropolitan police officers performed their duties bravely on January 6th, and America owes those individual immense gratitude for their courage in the defense of Congress and our Constitution. Without their bravery, January 6th would have been far worse. Although certain members of the Capitol Police leadership regarded their approach to January 6th as “all hands on deck,” the Capitol Police leadership did not have sufficient assets in place to address the violent and lawless crowd. 21 Capitol Police leadership did not anticipate the scale of the violence that would ensue after President Trump instructed tens of thousands of his supporters in the Ellipse crowd to march to the Capitol, and then tweeted at 2:24 p.m. Although Chief Steven Sund raised the idea of National Guard support, the Capitol Police Board did not request Guard assistance prior to January 6th. The Metropolitan Police took an even more proactive approach to January 6th, and deployed roughly 800 officers, including responding to the emergency calls for help at the Capitol. Rioters still managed to break their line in certain locations, when the crowd surged forward in the immediate aftermath of Donald Trump’s 2:24 p.m. tweet. The Department of Justice readied a group of Federal agents at Quantico and in the District of Columbia, anticipating that January 6th could become violent, and then deployed those agents once it became clear that police at the Capitol were overwhelmed. Agents from the Department of Homeland Security were also deployed to assist.
  17. President Trump had authority and responsibility to direct deployment of the National Guard in the District of Columbia, but never gave any order to deploy the National Guard on January 6th or on any other day. Nor did he instruct any Federal law enforcement agency to assist. Because the authority to deploy the National Guard had been delegated to the Department of Defense, the Secretary of Defense could, and ultimately did deploy the Guard. Although evidence identifies a likely miscommunication between members of the civilian leadership in the Department of Defense impacting the timing of deployment, the Committee has found no evidence that the Department of Defense intentionally delayed deployment of the National Guard. The Select Committee recognizes that some at the Department had genuine concerns, counseling caution, that President Trump might give an illegal order to use the military in support of his efforts to overturn the election.

This Report begins with a factual overview framing each of these conclusions and summarizing what our investigation found. That overview is in turn supported by eight chapters identifying the very specific evidence of each of the principal elements of President Trump’s multi-part plan to overturn the election, along with evidence regarding intelligence gathered before January 6th and security shortfalls that da

Scroll to Top