Earlier this month, the January 6 committee alleged in a court filing that former President Donald Trump (and right-wing lawyer John Eastman) were part of a “criminal conspiracy” to overturn the 2020 election results.
But what, exactly, does that mean? And how much legal trouble could Trump be in from whatever the House committee investigating the January 6 riots at the US Capitol ultimately finds out? I put those questions – and a few more – to CNN senior legal analyst Elie Honig.
Our conversation – conducted via email and lightly edited for flow – is below.
Cillizza: The January 6 committee said that Donald Trump was part of a “criminal conspiracy” around the 2020 election. What, legally speaking, does that mean?
Honig: Legally, not much. Politically, an awful lot.
In the narrow sense, this is the committee’s effort to obtain emails between Trump and attorney John Eastman. Eastman has claimed those documents are protected by attorney-client privilege, but the committee counters that they are subject to what’s called the “crime-fraud exception” – meaning the communications relate to commission of a crime or fraud.
So the stakes here are really whether or not the committee gets a set of emails, which could prove important evidence of the intent behind Eastman and Trump’s efforts to steal the election.
More broadly, the committee’s brief is a powerful political statement and, in my view, a call to action by the Department of Justice. The audience here is not just the judge, but also the DOJ and the American public. The brief reads like a prosecution memo. It’s the committee saying, essentially, we believe there’s a case to be made against Trump, and here’s how we’d do it. Of course, the ultimate decision whether to charge Trump (or anybody) rests entirely with DOJ, not Congress.
Cillizza: If the committee wins its case, what’s the practical effect?
Honig: First, they’ll get the emails between Eastman and Trump. And if the judge rules on the basis of the crime-fraud exception, we’ll have a formal finding by a federal judge that there’s at least a foundation of evidence on which to conclude that Trump committed a crime. That does not ensure Trump will be prosecuted, but it will further amp up the pressure on DOJ to take action.
Cillizza: What factors is the DOJ considering when they look at the 1/6 committee’s final product?
Honig: First of all, normally DOJ doesn’t wait for or depend on Congress to gather facts. To the contrary, if DOJ is investigating a particular person or a topic, it will ask Congress to stand down and allow DOJ to proceed first; as a prosecutor, you never want some other entity questioning or potentially immunizing your witnesses or your targets.
The fact that DOJ seemingly has not asked the committee to stand down – [California] Rep. Adam Schiff has publicly confirmed this – suggests to me that DOJ is not currently investigating Trump or others around him in a direct, serious way. It’s not dispositive – we don’t know fully what DOJ is or is not doing behind closed doors – but it’s an indicator.
When the committee does eventually issue a report, DOJ is of course free to consider it. So the trick for the committee is to going to be how to present its findings in a credible and compelling way, and in a manner that prosecutors will look at the evidence and feel like there’s a chargeable criminal case sitting there to be had.
Cillizza: If Trump were to face criminal charges, what are the most likely ones?
Honig: Charges relating to the effort to steal the election, leading up to January 6. We could see state charges in Georgia from the Fulton County DA relating to election fraud, though it’s far from certain the DA will in fact indict (and the DA has been moving on an inexplicably slow, and suboptimal, timeline).
If DOJ ever does seriously dig in – again, a major unknown, trending towards unlikely – I see potential charges for obstruction of an official proceeding (here, the counting of electoral votes by Congress) and conspiracy to deprive the United States of a fair election. The focus here would be on the effort to steal the election by fraud and coercion leading up to January 6 – pressuring local officials, the fake electors scheme, weaponizing DOJ, and pressuring [Vice President] Mike Pence to illegally discard certain electoral votes.
Cillizza: Finish this sentence: “The January 6 committee presents a ___________ legal threat to Donald Trump.” Now, explain.
Honig: “Indirect but potent.”
For all Congress and the Committee can do – issue subpoenas, take witness testimony, hold hearings, issue a final report – they simply cannot legally compel DOJ or anybody else to bring criminal charges. The decision to indict sits entirely with the Justice Department (or other state- and county-level prosecutors).
That said, the committee’s findings absolutely can drive public awareness and political pressure on DOJ. While prosecutors are supposed to be impervious to outside influences, the reality is that prosecutors also do not operate in a vacuum and are aware of public and political sentiment.
More directly, the committee already has uncovered an awful lot of remarkably compelling evidence – testimony from certain key insiders, the Mark Meadows texts, the fake elector certificates, and more. Prosecutors are free to consider and use this evidence (subject to technical rules of evidence) and the more compelling the evidence found by the committee, the more likely we are to see charges.