On Tuesday, the House of Representatives’ Jan. 6 committee referred Donald Trump to the Justice Department for prosecution on four charges: conspiracy to defraud the United States, obstruction of an official proceeding, false statements to the government, and insurrection.
The first three charges seem most obvious, because the evidence of them is solid, and the barriers—legal and factual—to proving them are surmountable. But it’s the last charge, insurrection, on which the committee is most saliently staking out its important place in history.
The first crime of conspiracy involves an agreement between two or more individuals to deprive the government of its lawful function: administering a lawful election. On Monday, committee member Rep. Jamie Raskin named John Eastman, the legal architect of the scheme, as Trump’s co-conspirator in the multipronged plot to get Vice President Mike Pence to reject or delay the election’s certification.
In addition, in March, federal judge David Carter found, based on sealed evidence from the committee, that Eastman conspired with Trump to defraud the United States.
As for the second crime, obstruction, it involves the willful impeding of the Jan. 6 Joint Session of Congress in certifying President Joe Biden’s election. The scheme mirrors the conspiracy plot, and the clear evidence of it overlaps.
Regarding false statements to the government, Rep. Raskin cited the “fake elector scheme” in which Trump directly participated. It involved getting Republicans in seven states where he had lost the vote to manufacture illegitimate slates of Trump electors. Those phony slates submitted to Congress had fraudulent “official” seals or certifications: false statements of the kind that angers jurors and leads them to convict.
The last crime, insurrection, is about “inciting [or] assisting” a violent rebellion “against the authority of the United States.” Because Jan. 6 was surely that, Special Counsel Jack Smith will undoubtedly consider the crime. But as a careful prosecutor, he would be excused for deciding not to charge it. (More on that in a moment.)
The committee was not about to exclude insurrection from its referral. Congress’ endorsement of a charge of insurrection frames for the future what happened on Jan. 6. Further, a conviction for that crime carries the potential under the 14th Amendment for disqualification from holding public office.
More concretely, we also have an important judicial benchmark that supports a charge of insurrection. In February 2022, federal district court Judge Amit Mehta rejected Trump’s motion to dismiss three civil lawsuits against him, two by congressional representatives and one by Capitol police officers. The suits alleged that Trump led a conspiracy to incite the crowd to insurrection.
Mehta explained why the suit should go forward. At Trump’s Ellipse rally on Jan. 6, with the Capitol invasion minutes from happening if not already underway, the former president told his supporters, “If you don’t fight like hell, you’re not going to have a country anymore.”
Trump also said, “When you catch somebody in a fraud, you are allowed to go by very different rules.”
Testimony to the Jan. 6 committee informed us that Trump was told before the rally that some attendees just outside the magnetometers that were screening the crowd were armed.
Judge Mehta wrote that “the President’s January 6 Rally Speech can reasonably be viewed as a call … for imminent violence or lawlessness,” made with knowledge that militia groups prone to violence were in the crowd.
In addition, Trump’s 187-minute delay in telling the violent participants to go home, despite pleas from family, advisers, and allies, is powerful evidence that he wanted the violence to succeed in preventing the certification of his defeat.
Still, it’s uncertain whether Smith eventually files that charge. Among the four crimes alleged by the committee, insurrection is by far the most difficult to prove.
Were Smith to charge it, he would need to overcome Trump’s First Amendment defense under the Supreme Court’s ruling in Brandenburg v. Ohio. There, the court ruled that to be outside free speech protection, the words of a speaker accused of advocating force must be “directed to inciting or producing imminent lawless action and [be] likely to incite or produce such action.”
That is an extraordinarily high standard to meet by proof “beyond a reasonable doubt.” When Judge Mehta found that Trump’s speech (and other facts) justified civil plaintiffs proceeding with their lawsuit, the court was dealing with the far lower burden of proof in civil cases: that the plaintiffs were “more likely than not” to persuade a jury of their claims.
Another challenge to proving that Trump intended violence arise from Trump having included a call for “peaceful” protest. Judge Mehta pointedly wrote that that “passing reference” could not block the lawsuit against Trump from advancing, given “his exhortation, … to ‘fight like hell’ immediately before sending rally-goers to the Capitol.”
Again, however, because prosecutions put individual liberty at stake, the wall to a criminal conviction built by the “beyond a reasonable doubt” standard stands several stories higher than the barrier standing between civil plaintiffs and the money damages they seek to recover.
Finally, any conviction for insurrection would not be certain to disqualify Trump from office. We can expect that a court would need to uphold any disqualification.
Bear in mind that in 1969, the Supreme Court ruled that the Constitution’s age, citizenship, and residency requirements for membership are exclusive. In other words, one cannot be excluded from office except for failing to meet a specified qualification.
While the 1969 case did not involve disqualification for inciting or aiding an insurrection, it is no safe bet that the current Supreme Court would uphold such a disqualification.
The bottom line is this: In a case against a former president, it would take a highly aggressive prosecutor to take the risk involved in pursuing this charge when the others are easier to prove and require fewer motions that could lose.
The committee’s referral of Trump to be charged for insurrection is an important flag planted in the firm ground of history. Whether it finds its way to a jury is a whole other question.
This piece has been updated since it was first published.