The House committee investigating the January 6, 2021 attack appears to be moving to the conclusion that former President Donald Trump has broken the law, and developments in recent days have raised questions about his possible criminal exposure.
On Tuesdays the Washington Post reported that White House records of Trump’s phone calls on the day of the attack, which were turned over to the Jan. 6 commission, had a seven-hour, 37-minute gap with no calls listed. There has been much speculation by researchers and commentators that Trump used unofficial “burner phones” that day to avoid leaving a paper trail on federal government records. (Trump denied knowing what a burner phone is.)
Meanwhile, earlier in the week, a federal judge took stock of the January 6 commission’s argument that Trump had committed crimes related to the day’s events — and found them compelling. As part of a judgment in civil proceedings on whether Trump’s attorney should hand over some documents to the committee, the judge wrote that Trump “more likely than not” committed both obstruction and conspiracy when he tried to obstruct Congress’ vote counting, and strongly condemned his actions. . This is just the opinion of one judge, but it was a vote of confidence in the case that the committee appears to be building.
The committee has been working since last july† Its chairman, Rep. Bennie Thompson (D-MS), has said its purpose will issue an interim report on the findings in June. A final report is expected to follow at the end of the year. (If Republicans regain control of the House of Representatives in the midterm elections, as expected, they will likely dissolve the committee when they take office in January.) The committee is investigating whether Trump has broken the law, and they seem likely to conclude that he did.
But ultimately, any decision on whether or not to charge Trump here will be made by Attorney General Merrick Garland’s Justice Department. And it’s unclear whether Garland and his aides will be convinced by this legal reasoning.
Trump’s records gap and possible “burner phones”
The most recent development is that on Tuesday the Bob Woodward and Robert Costa of the Washington Post reported that the Jan. 6 White House data handed over to the committee has a seven-hour, 37-minute hiatus in the middle of that day, with no calls from President Trump being recorded or received.
The existence of a hole in Trump’s official phone records that day was… reported in February, but the Post obtained the data itself and specified the exact length of that gorge, which is … very long indeed, includes the first attack itself and lasts until 6:54 p.m. Eastern. (Police declared the Capitol safe at 8 p.m..)
Since there multiple reports about Trump calling or receiving during this period, it seems clear that the official data is incomplete. Trump may have used his aides’ phones to talk to others. But Woodward and Costa also report that the committee is investigating whether Trump intentionally used cheap “burner phones” that can be used temporarily and then discarded, avoiding an easily documentable paper trail.
Trump responded with a statement claiming he had “no idea what a burner phone is, as far as I know I’ve never even heard the term”.
But former National Security Adviser John Bolton told Costa he had heard Trump use the term “burner phones” several times and that Trump fully understood what they were used for. And Hunter Walker wrote for Rolling Stone in November that some organizers of the pro-Trump rally in Washington, DC, had been given burner phones on Jan. 6 to contact Trump’s team and even members of the Trump family.
Obviously, this gap makes it much more difficult for the Jan. 6 commission to document Trump’s behavior during key hours during the attack. And it certainly raises questions about why Trump was seemingly so eager to avoid leaving a paper trail. What the committee will do next is not clear, but one of its members told the Post that they are investigating a possible “cover up”.
A federal judge ruled Trump “more likely than not” committed crimes
Meanwhile, on Monday, a federal court judge – David Carter, of the Central District of California – issued a ruling: a rather remarkable order make it clear that he believed Trump had probably committed crimes.
The ruling came in a lawsuit over whether Trump’s attorney John Eastman should hand over certain emails to the Jan. 6 commission. Eastman claimed they were subject to attorney-client privilege, but the commission argued that privilege didn’t apply here, in part because of the “crime fraud exception.” (Basically, if an attorney advises the client about committing a crime or fraud, their communications are not shielded by privilege.)
So this was really the committee’s first major attempt to argue that Trump committed crimes in connection with his bid to reverse the election — and Judge Carter found their arguments compelling.
The commission had argued that they believed Trump had committed three crimes. The first was obstruction of official procedure (the census of electoral votes by Congress on January 6). Second, there was conspiracy (basically collaborating with other people to obstruct proceedings). Third, there was simple common law fraud (related to his false claims that the election was stolen from him).
Carter did not assess the issue of common law fraud as being irrelevant to the emails before him, but concluded that it was “more likely than not” that Trump obstructed and conspired regarding the vote count of 6 January.
And he did use strong words. Saying that Trump and his allies “launched a coup in search of a legal theory” that “provoked violent attacks on the seat of our nation’s government,” Carter wrote that if “Trump’s plan had worked, it would have been a permanent would have put an end to the peaceful transfer of power.”
But what does it come down to? The concrete result of this finding of a crime fraud exception is that Carter instructed Eastman to turn over a single additional e-mail chain to the commission. This e-mail chain contains a draft memo discussing the plan to have Vice President Mike Pence refuse to count the electoral votes of certain states. It’s unlikely this will be the kind of bomb that will blow the case wide, as we’ve seen similar documents before.
So the meaning of the ruling is just that a federal judge agreed that Trump himself probably committed crimes — but that’s also the limitation. It’s just the opinion of one judge. The real decision makers about whether Trump will be charged lie elsewhere.
Ultimately, the commission should not indict Trump
The Jan. 6 commission indicated that its endgame could be to recommend criminal charges against Trump — to issue a report with evidence to charge him with obstruction and conspiracy, and put forward a legal argument as to why he should be charged.
But like Judge Carter, the committee can only express its own opinion. The people who will be making the call for whether or not to indict Trump are the prosecutors and the leadership of the US Department of Justice. And it’s not at all clear whether they are convinced enough by these arguments to take that hugely consistent, certainly controversial action.
Prosecutors have charged more than 700 people with crimes related to the January 6 attack. These charges were aimed at people who actually broke into the Capitol or who conspired to get others to do so. No Trump associates, current or former, have been charged for their actions that day.
Trump called on his supporters to come to Washington on January 6. tweeted “Be there, will be wild!” in December), and when he spoke at the rally, he said encouraged them to march to the Capitol and suggested that he join them (but ultimately didn’t). He clearly wanted his supporters to cause major disruption, and he and Giuliani threw out several procedural tricks his congressional allies could use to slow the vote counting.
But did he envision that the mob would physically break into the building before it happened? So far there is no real evidence for this. That means any Trump prosecution will likely be less about the actual break-in of the Capitol and more about his efforts to nullify the election results through political pressure.
Judge Carter and the Jan. 6 commission leaders argue that Trump’s political pressure on Pence and others amounted to breaking the law. The question is whether Attorney General Merrick Garland and other top Justice Department leaders would agree. And so far they haven’t been there, or anywhere near it.