Why the January 6 Committee Alleged ‘Criminal Conspiracy’ by Team Trump

January 6 Committee Chair Bennie Thompson listens as Representative Liz Cheney questions D.C. Metropolitan Police Department Officer Michael Fanone on July 27, 2021. Photo: Bill O’Leary-Pool/Getty Images

In a development that will please anyone hoping to see Donald Trump finally brought to justice, the U.S. House Select Committee on January 6 submitted a court filing to a federal judge in California alleging that the 45th president and some of his allies may have engaged in a “criminal conspiracy” to defraud the federal government and obstruct Congress by seeking to prevent confirmation of Joe Biden’s designation as president-elect on January 6, 2021.

But it’s far, far too early to envision Trump being led from a courtroom in leg-irons. The filing only stipulates potential criminal charges; the January 6 committee has no power to bring them, and at most could refer evidence to the Department of Justice, which would make its own decisions about prosecuting — or, more likely, not prosecuting — the scofflaw ex-president and his cronies.

The purpose of the court filing is to enforce a subpoena against Trump’s lawyer John Eastman, author of the infamous Eastman memo, the document aimed at convincing Vice-President Mike Pence that he could throw out electoral votes won by Joe Biden. The committee wants emails Eastman sent to various people, including members of Congress, during the run-up to the violence-marred joint session of Congress on January 6. Eastman is trying to use attorney-client privilege to hide documents from the committee, but communications in the pursuit of fraud or criminal acts are a recognized exception to that privilege. So the fraught subject of where the investigation might ultimately lead has officially come up, with the committee asking the California judge to privately review some of the evidence it has already compiled.

A public statement by the committee spelled out its tentative conclusion, as the Washington Post reports:

“The facts we’ve gathered strongly suggest that Dr. Eastman’s emails may show that he helped Donald Trump advance a corrupt scheme to obstruct the counting of electoral college ballots and a conspiracy to impede the transfer of power,” the committee’s chairman, Rep. Bennie G. Thompson (D-Miss.), and vice chair, Rep. Liz Cheney (R-Wyo.), said in a statement.

The court filing goes further:

“As the courts were overwhelmingly ruling against President Trump’s claims of election misconduct, he and his associates began to plan extra-judicial efforts to overturn the results of the election and prevent the President-elect from assuming office,” the brief said. “At the heart of these efforts was an aggressive public misinformation campaign to persuade millions of Americans that the election had in fact been stolen. The President and his associates persisted in making ‘stolen election’ claims even after the President’s own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong.”

The direction of the committee’s investigation makes it very clear that its initial focus on the Capitol Riot has now given way to a broad-based inquiry into Team Trump’s conduct long before January 6. It encompasses a plot that began with Trump’s systematic efforts to sow doubts about the legitimacy of voting by mail and his constant claims that he could only lose the election and his presidency as the victim of fraud. But the plot definitely thickened as the process leading to Joe Biden’s inauguration unfolded, and the violence of the Capitol Riot itself was mostly a horrific punctation mark on a failed election coup.

Now that the specter of potential criminal charges has been raised — even if they never materialize — we can expect the long-simmering Republican rage at the very existence of the January 6 committee to explode into virulent claims of a vengeful witch hunt by Democrats. But let’s remember that the congressional Republicans who opposed Trump’s second impeachment argued he was a private citizen who, if necessary, could be held accountable by prosecutors and the courts if criminal behavior was proved. So they aren’t on very solid ground in demonizing proceedings to determine fully what Team Trump did and how it very nearly obstructed an orderly postelection transfer of power. While it remains unlikely that the ex-president and his associates in the Trump-Pence campaign, the outgoing administration, and Congress will face criminal sanctions, it is becoming harder with each new revelation to pretend the events of January 6 were some sort of isolated moment of madness for whom no one is really accountable. If nothing else, voters may have to hold Trump accountable by denying what is likely to be his renewed bid for power in 2024.