In advance of tomorrow’s snap hearing of the Jan. 6 select committee, we are publishing the updated criminal evidence tracker (available below and as a PDF).
Thursday’s fifth hearing of committee focused on former President Donald Trump’s campaign to misuse his own Department of Justice in his efforts to overturn an election he lost, and in particular the role of his main collaborator at DOJ, former DOJ assistant attorney general Jeffrey Clark. We outline what the legal significance of what we learned in the hearing about Trump’s efforts, Clark’s role and more in the fifth edition of our criminal evidence tracker.
The live witnesses were former acting attorney general Jeffrey A. Rosen, former acting deputy attorney general Richard P. Donoghue and the former head of the Office of Legal Counsel, assistant attorney general Steven Engel. They were examined in a hearing led by Republican Rep. Adam Kinzinger and supplemented by the frequently explosive video testimony of other key players, making for another powerful day.
Thursday was notable because more than any of the other hearings, it occurred against the backdrop of significant outside events that were closely related to the subject matter of the hearing. In the 24 hours before the hearings, news broke of multiple subpoenas, including search warrants, relating to the federal criminal investigation of the phony elector scheme. That was capped off with breaking news of federal investigators executing a search warrant on the Virginia home of the main player (besides Trump) of the hearing that followed, Clark.
Clark infamously tried to help Trump overthrow DOJ leadership and overturn the election, resulting in his taking the Fifth Amendment over 100 times in his deposition before the committee. Both the raid on his premises and the content of Thursday’s hearing suggested he had good reason.
With the raid and the hearing, we learned two big things: Clark is at severe risk of criminal prosecution. And Trump’s exposure got worse.
Among other potential crimes, their exposure may fit within the “likely” criminal conspiracy (in the words of a federal judge in California) to defraud the United States (18 U.S.C. § 371) and to obstruct an official congressional proceeding (under 18 U.S.C. § 1512). The likely fraud involved interfering with government functions to prevent the legitimate winner of the election from taking office. That included Trump, with Clark’s help, pushing for the fraudulent slates of electors. The likely obstruction included Trump’s attempt, again with Clark’s help, to use those phony electoral slates as part of a scheme to interfere with congressional recognition of Biden’s electors. We explain the new evidence in the linked trackers of evidence of those two federal crimes.
New evidence about possible violation of Georgia criminal law regarding the solicitation of election fraud also came in on Thursday, and we update the third tracker as to that crime as well. For example, the Committee focused on Clark’s Dec. 28, 2020, draft DOJ letter containing express references to substituting a “separate slate of electors” in Georgia and several other states. We heard in the hearing from Clark’s superiors, the top leadership of DOJ under Trump, that the proposed letter — which Clark tried to get Rosen and Donoghue to sign–was totally unfounded. They, along with Engel, numerous witnesses on video, and the committee members, painted a devastating picture of Clark’s likely criminality–and certain incompetence. As but one example, White House lawyer Eric Herschmann warned Clark that sending the letter would constitute a felony.
Of course, it’s not only Clark whose situation got worse with the most recent hearing. That’s because as the committee noted at the previous hearing, “President Trump and his campaign were directly involved in advancing and coordinating the plot to have state legislatures replace legitimate Biden electors with fake electors.” A loophole in the Presidential Election Day Act of 1845 was central to this plot and a key part of the draft Clark letter that Rosen and Donoghue refused to sign. The 1845 law potentially allows state legislatures to declare that an election has “failed” and then to replace the choice of presidential electors made by the voters with electors selected by the state legislature itself. Clark’s draft letter to Georgia said that the “purpose of the special session” would be for the Georgia legislature “to determine whether the election failed to make a proper and valid choice between the candidates.” And now we have learned about how Trump pushed hard to engage DOJ in his coup attempt and tried to thrust Clark upon DOJ as acting attorney general.
The fifth hearing presented some of the most compelling evidence to date of Trump explicitly running the coup effort. His directive to acting attorney general Rosen and acting deputy attorney general Donoghue to “just say the election was corrupt and leave the rest to me and Republican congressmen,” is well-described as “a smoking gun” in establishing Trump’s criminal intent.
Criminal intent as to the fake elector scheme would not be hard to prove, as one of us explained in the Washington Post last week. Whatever Trump and Clark may have believed about the outcome of the election, they are not allowed to engage in a scheme involving forgery, any more than someone who feels the US Treasury has ripped them off can respond by counterfeiting currency in the amount they are owed. Whatever they believed, they cannot break the law to address the “problems” they perceived (problems which of course were false). It is vigilantism, and that’s against the law. OJ Simpson spent a considerable time in jail after he used force to break into a hotel room and seize memorabilia–even though he believed it was his property.
There was much more of note in the hearing itself. That included important new revelations about Trump wanting to seize voting machines, pursue absurd conspiracy theories and insert one of his associates, Sidney Powell, as special counsel at DOJ to “investigate voter fraud.” To top all that off, the hearing ended with shocking evidence that a number of congressmen who helped Trump with the scheme were so concerned about their own criminal exposure that they sought pardons. That final bombshell sent the committee into a couple of weeks off with momentum for when the hearings resume in July.
Together with all else we learned Thursday, there is plenty to discuss in the interim. The committee has already presented formidable evidence that Trump led a criminal conspiracy in a coup attempt to steal the 2020 presidential election from the duly elected winner. The Committee has previewed that there is more important evidence to come. All the while, the country has still not seen one shred of credible evidence from Trump and his allies that there was widespread fraud in the 2020 election that affected the result or justified the conduct we map in our three trackers.
We will continue to update our charts after tomorrow’s snap hearing and future hearings. The current editions are provided below and as a separate PDF.