Today, Explained - Criminal referrals for Donald Trump

Episode Date: December 20, 2022

The January 6 committee sent the Justice Department four criminal referrals against the former president, who it alleges engaged in an elaborate criminal conspiracy to remain in office after his 2020 defeat. Vox’s Andrew Prokop explains what happens next. This episode was produced by Hady Mawajdeh and Siona Peterous, edited by Matt Collette, fact-checked by Laura Bullard, engineered by Efim Shapiro, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Previously on America. After the unprecedented attempt by former President Donald Trump to stay in power culminated in the storming of the U.S. Capitol by Trump supporters, there was a demand from Democrats and even some Republicans for a reckoning with what happened. And what resulted was a mostly Democratic-filled committee, but with two key Republican appointees, Liz Cheney and Adam Kinzinger, both members of Congress, Republicans who were truly appalled by what Trump did. They gathered new evidence, they gathered depositions, and we are getting to the swan song of the January 6th committee this week. And that's what's ahead on Today Explained. Bet MGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer, you're always taken care of with a sportsbook born in Vegas.

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What do you think today explained us? I don't know. Andrew Prokop, Vox, the House Select Committee looking into the January 6th attack on the U.S. Capitol is wrapping up its inquiry this week. They're going to release a thousand page report that will surely be atop of most Americans holiday reading list. But just in case it isn't, they released a hundred page executive summary of the report that's coming out later this week. What the heck is in it? They put together all of the evidence and testimony and weave it into a sort of central narrative, trying to make the point that this was very much a deliberate and planned effort on Trump's part and making the case that he broke the law in several specific ways.

No man who would behave that way at that moment in time can ever serve in any position of authority in our nation again. They say, here are the crimes, essentially. And the committee voted on Monday to officially recommend Trump's referral for prosecution for these crimes by the U.S. Justice Department. Number one, obstruction of an official proceeding. That is the January 6th counting of the electoral votes in Congress and the transfer of power. Title 18, section 1512C, which makes it unlawful for anyone to corruptly obstruct, influence, or impede any official proceeding of the United States government.

They argued that by trying to prevent the transfer of power, trying to get Mike Pence to overturn the outcome and getting his supporters to make trouble, Trump was trying to obstruct that official proceeding, which is illegal. We believe that the evidence described by my colleagues today and assembled throughout our hearings warrants a criminal referral of former President Donald J. Trump, John Eastman, and others for violations of this statute. Number two, conspiracy to defraud the United States. In other words, to make an agreement to impair, obstruct, or defeat the lawful functions of the United States government by deceitful or dishonest means. This is a pretty broad statute that we've seen often in the Mueller investigation,

other corruption investigations that the Justice Department can use when they think that a public official or anyone really is trying to abuse their power to prevent the government from fulfilling its official functions. And in this case, that function would be recognizing the lawful and accurate result of the election and turning power over to the rightful winner, Joe Biden. Number three is conspiracy to make a false statement. The evidence clearly suggests that President Trump conspired with others to submit slates of fake electors to Congress and the National Archives. He said that Wisconsin and Pennsylvania and Michigan and Georgia, Arizona, Nevada, New Mexico, that they were

going to put together a slate of Trump electors from each of these states, and they were going to submit them to Congress and say, these are the electors from the state. So the goal here was to get those into the hands of Vice President Mike Pence, who was supposed to open the envelopes of the electoral votes and read them out. And Trump wanted Pence to say, oh, I've got two sets of electors from this state. I don't know what to do about it. Maybe we shouldn't count them or that Congress would have to vote on what to do about it. But the committee's position is that this was essentially fraud. They were creating a list of electors that were not the true electors from the state, that was a lying list of electors, and that that deserves to be officially prosecuted.

And then number four is assisting an insurrection against the United States. It is a grave federal offense anchored in the Constitution itself, which repeatedly opposes insurrections and domestic violence and indeed uses participation in insurrection by office holders as automatic grounds for disqualification from ever holding public office again at the federal or state level. Four crimes there in their opinion, and then they will refer it to the Justice Department for the consideration of recently appointed special counsel Jack Smith. The committee has developed significant evidence that President Trump intended to disrupt the peaceful transition of power under our constitution.

And what does that mean, refer it to the Department of Justice? Because this is coming from Congress, does that carry any more weight than some guy mailing the Department of Justice a letter saying, hey, I think my neighbor is committing bank fraud? So I think the context for this has changed over the course of the year. There was a debate earlier in 2022 about whether the committee should recommend charges against Donald Trump, should make this criminal referral. The referral does not procedurally do anything. It does not force the Justice Department's hands.

It's a recommendation from Congress. It says, this is what we think. Now, they have made already, this committee and the House, have made two recommendations for prosecution that the Justice Department did act on. They indicted Steve Bannon and Peter Navarro, both former Trump advisors, for refusing to comply with the subpoenas that the committee offered. So the Justice Department actually swung into action pretty quickly on those. But those were kind of special cases because that's the committee saying, we think that these people defied our subpoenas and we think you should prosecute them for that. They also recommended to other people, Mark Meadows and Dan Scavino, other Trump White House officials, be charged for the same

thing, but the department declined to prosecute them. So it's really up to the Justice Department to decide what to do. Now, at the beginning of this year, it wasn't totally clear how intensely the Justice Department was investigating Trump himself for his involvement in January 6th and what they were thinking about it criminally. So in that context, it was possible that perhaps the committee's recommendation could be a wake-up call to the Justice Department, a call to action, say, hey, we think this is really important and you should go after it. But over the course of the year,

DOJ's investigation has seemed to grow a lot more serious and a lot more intense. The subpoenas have been flying. The special counsel has been appointed. They're clearly looking at this very seriously. So as compared to yesterday, will the decision to make these criminal referrals today They're clearly looking at this very seriously. So as compared to yesterday, will the decision to make these criminal referrals today change anything about DOJ's mind?

I don't think so. Was the whole process of unearthing new evidence undertaken by the committee helpful in shifting DOJ's thinking on this topic? That is possible. So was it just the former president or were there criminal referrals for anyone else? So the committee also referred several other people, mostly lawyers for Trump, who were deeply involved in this effort to overturn the election results. They were John Eastman,

Kenneth Chesebro, Rudy Giuliani, and Jeffrey Clark, Clark being the Justice Department official who Trump considered appointing to put in charge of the Justice Department and who wanted to enlist DOJ in declaring the election results were false and untrustworthy and that state legislators should disregard them. By that point in time, election-related litigation was over in all or nearly all of these states, and Trump campaign election lawyers realized that the fake slates were unjustifiable on any grounds and may be unlawful. In spite of these concerns and the concerns of individuals in the White House Counsel's office, President Trump and others proceeded with this plan. There was also Mark Meadows, Trump's former chief of staff, for just being involved in this

whole effort. Meadows is interesting because, yeah, Meadows transcends the legal team. He was in the administration. But I feel like this stuff could apply to some members of Congress, too. Yeah. So there were also some members of Congress who the committee referred to the House Ethics Committee for them to look into what they did. This includes likely next speaker Kevin McCarthy, as well as likely next to House Judiciary Committee Chair Jim Jordan, Representative Scott Perry, who was involved in this Jeffrey Clark Justice Department scheme, and also Representative Andy Biggs. Doozy! But those referrals were generally in connection to them not testifying before the committee in response to its subpoenas. They didn't really try to issue a final assessment of the legality of the behavior of various members of Congress who were involved in Trump's scheme. And I know all of this feels sort of familiar and even maybe slow moving to people who believe something very detrimental to our democracy transpired on January 6th, 2021. But as a

reminder, has anything like this ever happened before? Criminal referrals from Congress to the Department of Justice against a former president? No. Did anything like January ever happened before? Criminal referrals from Congress to the Department of Justice against a former president. No. Did anything like January 6th ever happen before? Also, no. This is a totally unprecedented situation. confusion and some lack of clarity, lack of precedent within the department, within Congress about how to even think about what transpired. And what the committee has been doing is providing what they hope to be more clarity about how to think about what Trump did, what it amounted to, and why, in their view, it was criminal. More with Andrew in a minute on Today Explained. Support for Today Explained comes from ramp ramp is the corporate card and spend management software designed to help you save time and put money back in your pocket ramp says they give finance teams unprecedented

control and insight into company spend with ramp you're able to issue cards to every employee with limits and restrictions and automate expense reporting so you can stop wasting time at the end of every month. ramp.com slash explained, r-a-m-p.com slash explained, cards issued by Sutton Bank, member FDIC, terms and conditions apply. today explained we're back with andrew prokop from vox andrew we've talked about these hearings a bunch of times on today explained including just now with you but some things are different now as you mentioned the committee is done the former president has announced he's running again meanwhile republicans are going to take over control of the House in less than two weeks. What are they going to make of this January 6th

committee's referrals and report, in which some of them are named and referred to the House Ethics Committee? The new Republican majority is expected to either shut the committee down totally or to try to do an investigation of the investigators looking for malfeasance in the way that Republicans tried to prove misconduct for the Trump-Russia investigation as well. So they're not going to take this particularly seriously or reflect on it in any way. And the former president announced he's running. How do these referrals and the GOP taking control of the House play into that? So Trump is running again. Allegedly, he announced his campaign, but he hasn't really held any rallies or done very much. And

he seems to be declining in the polls a fair amount. But I wouldn't really say it adds to the legal jeopardy he was facing because he was facing a lot of legal jeopardy already. The big thing that has happened over the course of the year is that the DOJ investigations of Trump have gotten much more serious and that just recently a special counsel was appointed to take charge of them, specifically because Trump announced he was running again. So now there is one person in charge of both the January 6th investigations and the other probe into whether Trump violated classified information laws and taking documents to Mar-a-Lago.

So he was already facing very serious legal scrutiny, and this report does not necessarily do anything to change that by itself. So this sets the stage for the former president to be running for office again while being investigated by the current Department of Justice. And perhaps indicted. And that Department of Justice is run by his potential opponent in this next election. I mean, isn't this automatically fodder for him to say, like, look at this corruption, look what they're doing to me, they're trying to impede my campaign by investigating me,

by indicting me? He is absolutely going to say those things regardless of what happens with the investigation, what the strength of the evidence is, and so on. But I think the Justice Department made the decision that, you know, if they think that he broke the law here in this unprecedented sweeping effort to stay in power, then that they were going to follow the facts where they lead in their view and to try to hold him accountable. And he can protest however he likes, but they're not going to let him off the hook because he's going to whine and complain about it. There are a lot of people out there, Andrew, who believe that this president is above accountability. And some people are happy

about it, and then some people are not. Is there any reality, is there any world in which Donald Trump faces the music for what happened on January 6th? I do think that's quite possible. I mean, we're still a bit of a ways away from there. But, you know, I know that hypothetical people out there may feel a bit disillusioned, a bit like we're in Groundhog Day, that Trump's been investigated so many times and nothing's come of it, etc., etc. This is just going to be more of the same. And, you know, maybe it will. I can't say for sure

what the future holds. But there are some really important differences now. All of the investigations while he was president ended with the problem that DOJ said it would not indict a sitting president. Now he's not president. He doesn't have those protections anymore. There's also the Supreme Court lying in wait. If there are some creative interpretations of certain statutes that DOJ uses to indict Trump, The Supreme Court may be lying in wait to say, no, actually, we think Trump was just doing kind of normal politics and he wasn't really breaking the law. So we don't think your charges stand. So, you know, there would be several twists and turns lying ahead. But personally, as someone who's covered Trump's legal jeopardy since 2017, I think he's closer to facing charges today than he has ever been in the past.

Of course, whether or not the former president faces charges or the music, one of the great tragedies here, beyond January 6th itself, is that most Americans can't agree on what happened that day and can't agree on the import of the work that was done by this committee. Did the committee ultimately accomplish anything before we see what the DOJ does? I think the committee accomplished a lot, much more than I initially expected. When this was initially being put together, and it was envisioned as a truly bipartisan committee with Republicans and Democrats represented perhaps equally, I didn't think it would accomplish anything. I thought it would be just completely bogged down in partisanship and nonsense. Democrats and with two Republicans who were really, really mad at Trump for January 6th ended up being kind of the best of both worlds for them because it is still bipartisan. Liz Cheney is not a Democrat. She is a rock solid Republican on essentially every issue, but she was just truly appalled

by what Trump did after the election and on January 6th and wants him to be held accountable. No man who would behave that way at that moment in time can ever serve in any position of authority in our nation again. He is unfit for any office. And she was more than any other person on this committee. She was the leading force in its investigation and what it did. And it often acted more aggressively than I would have expected. It found more. It got surprising results in testimony, most notably from the White House aide Cassidy Hutchinson. She revealed several really surprising things, such as that Trump really, really did want to go to the Capitol on January 6th. He really tried to get the Secret Service to bring him here. The president said something to the effect of, I'm the effing

president. Take me up to the Capitol now. When we all watched Trump's attempt to stay in power unfold in real time, it often seemed kind of comical. There were unhinged figures like Rudy Giuliani, Sidney Powell, Mike Lindell, the pillow salesman, playing starring roles, spreading like total nonsense. Establishment Republicans were averting their eyes. All Trump's lawsuits were getting thrown out of court. There was a press conference at Four Seasons Total landscaping where Rudy Giuliani appeared to be melting in public. Like, it all seemed kind of ridiculous. But the committee has really tried to dig in and make the case that rather than something flailing and silly, that this was deadly serious and that the seriousness was not just about the violence at the Capitol on January 6th itself. The seriousness was that Trump's conduct was part of a larger plan,

that there was some evidence it was premeditated even before the election, and that they don't buy anyone's arguments that Trump may have believed his own lies or became lost in conspiracy theories. They say he was knowingly prevaricating. The whole purpose and obvious effect of Trump's scheme were to obstruct, influence, and impede this official proceeding, the central moment for the lawful transfer of power in the United States. And their work is over, but the story isn't. So, to be continued? The ball is really in the special counsel's court now. Today, I signed an order appointing Jack Smith to serve as special counsel. Jack Smith,

he's a career prosecutor. He headed the public integrity section of the Justice Department, and he stepped down from the department in 2017. And since then, he has been chief prosecutor for a European Union body that's investigating war crimes in Kosovo. He's been working out of The Hague, and he's really been removed from the Trump-era controversies, not playing a part in them at all. But he has a reputation as being like a tough, serious, no-nonsense prosecutor who is going to follow the facts where they go. And so now the ball is in his court. He's now taken charge of this. He is still ultimately accountable to Attorney General Merrick Garland. Garland will have to sign off on any charging recommendations that Smith makes, but his eventual view of the facts will carry great weight in determining what happens and whether Donald Trump does end up being indicted. All right, so we'll see you, Jack, Merrick, and Don in the new year. I guess we will. Andrew Prokop, Vox.

Read his work at vox.com, won't you? Our program today was produced by Hadi Mawagdi and Siona Petros. It was edited by Matthew Collette, fact-checked by Laura Bullard, and engineered by Afim The Dream Shapiro. I'm Sean Romsferm. This is Today Explained. You can get in touch with us anytime via email or todayexplained at vox.com. We may not always reply, but we most definitely read, consider, and appreciate your feedback.