The Just Security Podcast

The Conclusion of the January 6th Committee

• Just Security • Episode 8

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After nearly a year and a half of hearings and interviews the January 6th Committee is wrapping up its work. It held its final hearing on Monday, will issue its final report on Thursday, and it referred former President Donald Trump to the Justice Department for potentially violating four federal criminal laws, including inciting an insurrection. 

To unpack the Committee’s final hearing, and the criminal referrals, we have Ryan Goodman, Barbara McQuade, and Asha Rangappa. Ryan is Just Security’s Co-Editor-in-Chief, Barbara is a Professor at the University of Michigan Law School, and she previously served as United States Attorney for the Eastern District of Michigan. Asha is a Senior Lecturer at Yale’s Jackson Institute for Global Affairs and she’s also a former FBI Special Agent. Barbara and Asha are both members of Just Security’s Editorial Board. 

Show Notes: 

Bennie Thompson: To cast a vote in the United States is an act of faith and hope. When we drop that ballot in the ballot box, we expect the people named on the ballot are going to uphold their end of the deal. The winner swears an oath and upholds it. Those who come up short ultimately accept the results and abide by the rule of law. That faith in our system is the foundation of American democracy. If the faith is broken, so is our democracy. 

Paras Shah: That’s Bennie Thompson, Chair of the House January 6th Committee, during its final hearing on Monday. After nearly a year and a half of hearings and interviews the Committee is wrapping up its work. It will issue its final report today, and it referred former President Donald Trump to the Justice Department for potentially violating four federal crimes, including inciting an insurrection. 

Welcome to the Just Security podcast, I’m your host, Paras Shah. To unpack the Committee’s final hearing, and the criminal referrals, we have Ryan Goodman, Barbara McQuade, and Asha Rangappa. Ryan is Just Security’s Co-Editor-in-Chief, Barbara is a Professor at the University of Michigan Law School, and she previously served as United States Attorney for the Eastern District of Michigan. Asha is a Senior Lecturer at Yale’s Jackson Institute for Global Affairs and she’s also a former FBI Special Agent. And Barbara and Asha are both members of Just Security’s Editorial Board. 

So, Barbara, I want to start with you. What do we make of these criminal referrals? 

Barbara McQuade: The criminal referrals, of course, are not binding on DOJ in any way whatsoever. The Justice Department will assess the evidence and make its own independent decisions about whether charges should be filed and what charges should be filed, but that doesn't make the referral irrelevant. I think for one thing, it makes a compelling case.

It points the Justice Department to the evidence that the Committee has assembled, and it also suggests some charges. Now, I think two of them have been obvious from the start, that is conspiracy to obstruct an official proceeding and conspiracy to defraud the United States. I think those are quite obvious, but there are two others that were not obvious to me and maybe were not obvious to the Justice Department.

One was the conspiracy to submit false documents to the government in the form of these false slates of electors, and they've tied Donald Trump and others to a conspiracy to orchestrate that. You know, I've kind of it as the people who signed it themselves, who may have been duped, may have thought they were just sort of casting a provisional ballot of sorts. But when you think about it being orchestrated from above, that's an interesting conspiracy claim and charge. 

The other one that surprised me was the charge of inciting insurrection. And again, I had previously thought that that was just a bridge too far because I was focusing solely on the President's speech on the ellipse on January 6th when he talked about “you got to fight like hell, or you're not going to have a country anymore.” 

But because he had used some sort of vague language, he never said specifically, I want you to physically attack the Capitol. And because he had thrown in the word “peacefully,” I thought that it would fail to rise above the bar the Supreme Court set in the case of Brandenburg v. Ohio, which said that before the government may criminalized speech, you must show that it was intended to incite imminent lawless action, and that the likely result was such action. And I didn't think the speech covered that. But what they did is they included the speech, but they also included the tweet that Donald Trump sent at 2:24 PM when it was very clear that this mob was attacking the Capitol. And Trump had been watching for over an hour on television.

And it was at that point that he said, that Mike Pence lacked the courage to do what was right and that the United States was demanding the truth. I think at that point it does meet that standard. And so I think in, that way this report may have been instructive and useful to the Justice Department when it makes its own independent decision.

Ryan Goodman: Can I circle into the part of the prior points that you're making, Barb, about the insurrection charge and then also just to do a hat tip to Asha, who I think was one of the very first analysts to identify 18 U.S.C. § 2383 as the appropriate charge, a long, long, long time ago. 

Barbara: Yeah, she was the first to call it that I saw. 

Ryan: Yeah, the one question I had is, Evan Perez was on CNN last night giving a little bit of an idea into what the Justice Department may be thinking. And one thing he said that I think was an important point is that the Justice Department, in his view, seems to have looked at the insurrection charge before and taken a pass with respect to the Proud Boys and the Oath Keepers, and instead gone down the path of seditious conspiracy. What do you either of you think about that, that they might have already kind of, not made up their minds, but already considered? At least under one scenario and rejected it in favor of a very closely analogous, statute.

Barbara: Ryan, I think the fact that the Justice Department declined to bring an inciting insurrection charge against one group of defendants does not mean that it would similarly decline to do so against Donald Trump.

I think the seditious conspiracy charge, at least based on what the Committee has found publicly, is not available against Donald Trump. There's a reason they didn't refer seditious conspiracy here, and I think it's because they have not yet made the link between those who physically attacked the Capitol and Trump or his allies in terms of the pre-planning of that physical attack. It may have happened, but we haven't seen evidence of that. But we do have evidence based on that tweet that Donald Trump was assisting in an insurrection. So, I think it's apples and oranges, and I don't think it by any means precludes charges  by the Justice Department just because they made that decision in a different case.

Asha Rangappa: Yeah, I would agree with Barb. So, I'm reading 18 U.S.C. § 2383: “Whoever 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, shall be fined under this title or imprisoned, not more than 10 years or both, and shall be incapable of holding any office under the United States.”

So, I would think that for the militia groups, it wouldn't be the incitement portion, it would be the setting on foot or engaging in any rebellion or insurrection. And I think if you're at that point where you're looking at their physical actions, seditious conspiracy, you know, which involves force and I believe the penalty is greater, might be a better fit in that case.

Whereas with Trump, as Barb noted, they're really looking at the incitement piece, maybe the giving aid or comfort as well, and so I think they're looking at different types of conduct and what would be the statute that would potentially best fit. And I think in Trump's case, as Barb said, it's just different conduct -- apples and oranges. 

Paras: Another aspect of this is that the January 6th Committee has gathered a mountain of information: over a million documents they've interviewed over a thousand witnesses, and they plan to release a lot of that information to the public. So, Barbara, what are the dynamics there with the Justice Department's investigation? Does that help it? Does that hurt it? You're a former federal prosecutor, what are your thoughts on that?    

Barbara: In some ways it could shortcut their work. They could read the transcript or witness statement from a witness they were considering interviewing and determine that it's not worth their time. And in, in that way, it could be helpful. They could read, , the transcript and find leads  in there and decide to pursue. questions, they may even decide that a statement given under oath is already buttoned down, and so they've got what they need if it were, you know, maybe for a small point, and not bother doing their own interview. So, in many ways it can be very helpful to their work and probably can shortcut it a bit.

But I think if they had their druthers, they would not have these documents in the public domain. Not only does the Justice Department get a roadmap, so does the defense. And so, it allows people to get their story straight if they see what other witnesses have said. It also allows message around what they might believe to be inevitable consequences. So, you know, they can start spinning the witness testimony in certain ways or undermining the credibility of certain witnesses because they now, they've seen what they've said. And so, I think it definitely puts the Justice Department at a legal disadvantage to have these transcripts out there in the public domain.

Paras: Asha, I'll turn to you. So far, the January 6th Committee, at least in its executive summary has focused a lot on Trump and it's focused much less on accountability for intelligence failures by law enforcement agencies. So, what do you make of that?    

Asha: Well, I think that this Committee just had a huge mandate. I don't blame them for not dealing with the intelligence failures because they were working on a limited time, they're really looking at the attack on the Capitol, and there are other committees that can address the intelligence failures, you know, after the January 6th committee is over, you know, the oversight committees, the judiciary committees, those types of investigations would really, in my opinion, be looking at systemic failures more than misconduct. Right, you know, maybe in the case of the Secret Service or something, there might be more misconduct, but my point is this was sort of their last chance to really do.

I almost see the January 6th Committee investigation as the kind of investigation that could have and should have taken place pre-impeachment proceedings had there been enough time and, bandwidth to do so. You know, the impeachment hearings were so curtailed because they were just dealing with such a short timeframe. But this is really, in my opinion, an extension of that, and I can see why they would focus on Trump's actions and what was happening in the higher echelons of his administration.

Ryan: I mean, we'll see from the full report, but in the executive summary, there's one paragraph, page five, and there's a really good piece in NBC News by [Ryan] Reilly and Ken Dilanian that walks through how the committee handled the FBI analysis. And I thought that they were even, it was pretty harsh in a certain sense, but in some ways I also thought they were pretty measured. Or maybe they were softening a part of it, which is the following: The committee actually seems to be giving a bit of a pass to the FBI. The way in which they describe it, the wording of it is so strange. Uh, just to put it in one context, it's almost as though if Chris Wray were given the pen and he got to write this because it's like, “oh, the FBI could not have anticipated, that Trump would tweet at 2:24 PM to the matter about Pence.” They could not have anticipated the scale of the full attack they could not have anticipated -- I'll read one line here – “They could not have anticipated that, Trump would refuse or did not anticipate and potentially could not, that Trump would refuse to direct his supporters to leave the Capitol once violence began.” 

And I guess I think of it in two ways. It's like, it's almost like an excuse in the sense of, well, those are such specific details. Like of course they didn't anticipate that specific detail that he would tweet at 2:24 PM about his Vice President, and at the same time, well, yes, of course they should have anticipated that Trump would maybe not call for his supporters to retreat once they saw the supporters descending on the Capitol. You know, I look forward to the full report, but that seemed worrisome to me in a way in which it was constructed, in a very defensive manner, but defensive about the actual department or agency. 

Paras: Ryan, the executive summary also mentions lack of cooperation from witnesses, and in some cases, this may even actually rise to the level of a federal crime. So, can you walk us through that aspect of the executive summary and the Committee hearing?   

Ryan: I did think one of the most important parts of the referral section of the executive summary is the evidence of multiple individuals engaged in obstruction of the investigation as the Committee describes it, including, lawyers telling their clients to say, “I do not recall,” even when the client clearly recalls. And that's a violation of federal criminal law because that's a lie, and I thought that that was also one of the most significant parts of what the Committee has been able to accomplish, which is they're handing that off to the Special Counsel.

Like Barb said, I don't think that they say that they have enough evidence to say that there should be an indictment or a charge, but they have enough evidence of potential criminal wrongdoing that I think could be very useful in the hands of the Special Counsel, not just only to enforce the integrity of the law and the integrity of the Committee's work, but those same individuals, because they now have potentially significant criminal exposure could potentially be flipped by the Special Counsel and cooperate in the investigation that's pointed more directly at Trump. And indeed, if they were reasons that they thought they had valuable information to hide, then they have valuable information to give is the way I think about that.

Barbara: You know, it's interesting, they don't kind of say this is the list of people we are referring, but they talk about, identities of the people they believe we're instrumental to the conspiracy. I read Trump in there, Rudy Giuliani, Mark Meadows, John Eastman, Jeffrey Clark, Kenneth Cheesebro. And I think any one of those is a potential cooperator, and I think the mere fact that they are named in this report and that their crimes are detailed in this report, has to give them extra incentive to be thinking very seriously this morning about whether to cooperate, if I'm a lawyer for any one of these people, I mean, you've already known about some of the facts that were out there, but I think naming them, singling them out, as potential targets of investigation, has got to prompt their lawyers to be talking with them today about possible cooperation.

Asha: Do you think that that will jumpstart Jack Smith to kind of approach these people directly? I mean, I'm concerned about the timeline here, you know, to the extent that, any of this is, you know, a roadmap or a blueprint. I mean, we are late in the game people. So I'm kind of wondering, you know,  That particular piece of it involved, lying to Congress, I'm not sure that that would already be on Jack Smith's radar, and I don't know how far, if they are just releasing the transcripts now, did they release these transcripts before? I mean, how long is this going to take? You know, even if they are potential cooperators? What's the timeline that we're looking at because we are under the gun at this point? 

Barbara: Yeah, I agree with you, Asha. I think that although the statute of limitations for this stuff probably doesn't run until, 2025 and into 2026, I suppose, as a practical matter, if the White House changes hands in 2025, a Republican administration could shut down this whole investigation. And I think that you not only need to have the charges filed, but you need to complete the trial by then, which means probably filing charges no later than the first quarter of 2023.

Asha: I mean I do think that that underscores why appointing a Special Counsel was wise, because it does offer more insulation into the next administration. It's not, it doesn't make it impossible to shut down our fire, but it makes it harder and adds additional obstacles and political costs to doing so.

Paras: Taking a step back. How do we evaluate the legacy of the January 6th Committee? What is that legacy?   

Asha: I'll jump in and others can add on. I mean, I think this has been hugely important. We focus on the criminal justice system because I think it's sexier, but we have to remember that,  criminal code is very narrow and what DOJ does will only show s slivers of a big picture.

We saw that happen in the Mueller investigation, and so to have a committee lay out the broad landscape, including evidence that may never either be introduced or even be admissible in court is really important. And I do think that, this January 6th Committee has been compared to the 9/11 Commission. I think it's different for the reasons that we talked about that. It's not really about systemic failures and things like that. This is really about, accountability for criminal misconduct. And so, I think almost, especially if the Justice Depart doesn't indict on any or all of these charges. It's really important to have a historical record of what happened and what the testimony of all of these people to have it, documented.

Ryan: There's something I've been thinking about as well. I'll just use one particular example of parts of what Asha had said, which is there are dimensions to the report that don't register in law, but register in terms of moral responsibility.

So, so much of this is about Trump as the essential character in the story, without whom these events would not have taken place. The attack on the Capitol would not have taken place, the militias would not have descended on the, on D.C. And there's so many details about that from the inside and the mindset of many of these people who did so. And a lot of that might not be able to work within, like if you're just going to place a criminal law framework onto it and say, “well, what's his legal criminal responsibility for having tweeted ‘it'll be wild,’” and there's not one for that. But it's still part of the important historical record that's established, by the Committee's work to understand the causal factors to understand the responsibility, that is at his feet for this, and then those who enabled him and who worked around him as well to advance their schemes. 

Barbara: I agree with Asha and Ryan in saying that it is very important to document for the historical record what happened, and I think that the Justice Department isn't able to do that. They will only speak through an indictment and only if they file charges. And so, if they decline charges, there will be no historical record.

And even when they do file charges, they will only file charges the places where they found crimes, on the books. and there's so much more that happened here that may not amount to a crime. And so if you want to change behavior in the future, it's really important to account for what happened in the past. And, that's the importance of history is, to shape the future. 

And I think one way that history shapes the future is by providing deterrence. If an indictment follows and criminal conviction follow, that provides some deterrent. But even if it doesn't, I think, there is value in shame in public shaming of people who did things that were so profoundly anti-democratic. And so, you know, the words of Liz Cheney, a Republican, become so important, for her to condemn people in her own party for participating in this attack on democracy. So, I think the report and the legacy of the Committee will be documenting history for the purpose of shaping the future.

Paras: Barbara, Asha. Ryan thank you very much

The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.   

This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! Just Security’s January 6th  clearinghouse has a treasure trove of documents and analysis related to the Committee’s work, we’ll link to it in the show notes. Special thanks to Ryan Goodman, Barbara McQuade, and Asha Rangappa.

If you enjoyed this episode, please give us a five star rating on Apple Podcasts, or wherever you listen. 

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