It’s Not Just the Attack on the Capitol

The “Select Committee to Investigate the January 6th Attack on the United States Capitol” has a slight branding issue: it turns out the Committee’s investigation and hearings into the conspiracy to overturn the election are not primarily about the attack on the Capitol.

The first hearing did focus on the January 6 attack, and was dominated by the riveting and horrifying video montage of footage from that day. But the second hearing focused on the many times Trump was told the election fraud claims were bogus – none of which happened on January 6. The third hearing was about the pressure campaign on vice president Mike Pence, most of which took place prior to January 6. The hearing on June 21 focused on Trump’s efforts to pressure state officials to overturn their election results — all of which happened prior to January 6. The same will be true of other hearings.

This is as it should be. A need to investigate the attack on the Capitol is, of course, what led to the Committee’s creation. But as the Committee’s investigation and hearings have unfolded, it’s become increasingly clear that the assault on the Capitol building was merely the bookend to a much broader conspiracy that unfolded over the weeks between election day and January 6.

In the context of that broader conspiracy, the physical assault on the Capitol, as terrible as it was, was not the most significant event. It was not critical to the conspiracy’s potential success. Even without the assault, the efforts to overturn the election were still potentially criminal and still could have succeeded. And in the long run, the events that took place prior to January 6 are actually more dangerous — because they are easier to repeat, and harder to detect.

Conspiracy street sign

The Language of Conspiracy

The Committee has promised that its hearings will demonstrate a “coordinated, multi-step effort to overturn the 2020 presidential election”. That is the language of conspiracy. And indeed, the most likely criminal charges would be conspiracy to obstruct a Congressional proceeding and conspiracy to defraud the United States.

In civil litigation involving the Committee’s efforts to obtain the emails of former Trump attorney John Eastman, a federal judge in California has already ruled there is evidence that Trump and Eastman likely committed those crimes. The standard in a civil case is far lower, of course, so that ruling alone does not prove a crime was committed. But it’s significant that a federal judge saw the facts that way.

The evidence required to prove these two crimes would be very similar. The central allegation would be that, through a series of actions, the conspirators corruptly sought to prevent or delay the Congressional certification of Joe Biden’s election victory at the joint session of Congress on January 6. Unlike the charge of seditious conspiracy (filed against the white supremacist groups the Proud Boys and Oath Keepers), these charges do not require the government to prove that the conspirators intended to use force to achieve their goals.

Conspiracy to obstruct a Congressional proceeding would be charged under 18 U.S.C. 1512(c)(2) and 1512(k). It’s a twenty-year felony. It requires the government to prove that the defendants conspired to corruptly obstruct, influence, or impede any official proceeding, including a proceeding in Congress. More than 200 of the rioters who actually attacked the Capitol on January 6 have been charged with this crime.

Many of those charged under 1512 have challenged their prosecution on various grounds, including claiming that the joint session of Congress was not an “official proceeding” within the meaning of the statute. About a dozen federal judges in D.C. have rejected that argument, with only one judge agreeing with the defendant and dismissing the charge. That issue is bound for the D.C. Circuit Court of Appeals and perhaps the Supreme Court, but I believe the law is on the government’s side.

A conspiracy to defraud the United States under 18 U.S.C. § 371 requires the government to prove that the defendants conspired to defeat, obstruct, or impede a lawful government function of the United States through corrupt or dishonest means. This was a leading charge in the indictment obtained by special counsel Robert Mueller of the Russian agents who interfered with the 2016 presidential election through social media and other methods. Mueller charged that, through those actions, the defendants conspired to defeat the lawful functions of the State Department, Federal Election Commission, and Justice Department.

One benefit of this charge for prosecutors is that it does not require proof that the defendants’ conduct was otherwise criminal. So, for example, if a court got hung up on the “official proceeding” requirement of 18 U.S.C. § 1512 and decided that statute did not apply, conspiracy to defraud the U.S. under §  371 could still be used to prosecute essentially the same conduct.  

Both of these potential crimes have another significant thing in common: most of the acts done in furtherance of the alleged conspiracies were carried out prior to January 6, by individuals who did not personally storm the Capitol building.

Rep. Liz Cheney
Rep. Liz Cheney (R – Wyo)

The Conspiracy to Overturn the Election

Conspiracies often involve the conspirators following different avenues to try to achieve their overall criminal goal. Different co-conspirators may have different tasks and may take part in different aspects of the conspiracy. Some paths pursued by some conspirators may be more fruitful than others. But all of their efforts are directed toward achieving their ultimate, shared criminal objective

House Committee vice-chair Rep. Liz Cheney (R-Wyo), in her opening statement on June 9, said the hearings would show that “Donald Trump oversaw and coordinated a sophisticated seven-part plan to overturn the presidential election and prevent the transfer of presidential power.” The different parts of that scheme will be the subject of different hearings. They are best viewed not in isolation but as part of a single overall plan, as Rep. Cheney said. And most of them did not depend on an assault on the Capitol. There are many ways to obstruct an official proceeding that do not involve a physical attack on the proceeding’s location.

As Rep. Cheney discussed, the different parts of this plan included:

— Spreading the big lie, by falsely claiming Trump had won the election and that there was widespread voter fraud.

— Corrupting the Department of Justice, by removing senior officials and replacing them with loyalists who would put the power of the Department behind Trump’s false claims of election fraud.

— Pressuring vice president Pence to refuse to count the lawful elector ballots and either send the issue back to state legislatures or simply reject those ballots and declare Trump the winner.

— Pressuring state officials to support false claims of election fraud and change their election results to declare Trump the winner, in states that Biden actually won.

— Sending slates of phony electors for president Trump to Washington, to falsely proclaim that they were the duly constituted electors from their states.

Notably, almost all of these efforts took place prior to January 6 and involved potential co-conspirators who were not on the ground on January 6 and did not take part in the assault on the Capitol.

The Nature of a Conspiracy Charge

Several features of a conspiracy charge make it particularly well-suited for these events. The first is simply that there are multiple individuals involved, pursuing a single criminal goal through multiple different avenues. Conspiracy charges are made to capture such efforts.

In a conspiracy charge, all co-conspirators do not need to be involved in all aspects of the conspiracy. Co-conspirators, as partners in crime, are criminally responsible for each other’s actions. If some were involved in pressuring state officials while others worked on the fake electors scheme or on corrupting the Department of Justice, all conspirators would be responsible as participants in a common enterprise pursued along multiple tracks.

Another key feature of a conspiracy charge is that the conspiracy need not succeed; the wrongful agreement itself is the crime. Hundreds of those involved in storming the Capitol have been charged with crimes that were actually completed – destruction of property, assault on a law enforcement officer, or unlawful entry into restricted areas. But in a conspiracy to prevent the certification of the election through non-violent means, it would make no difference that the certification ultimately was successful.

The proceeding on January 6 was in fact obstructed by the assault; it was delayed for hours as Congress was forced to evacuate the Capitol. But there could be conspiracy charges based on events prior to January 6 that do not include the assault on the Capitol as part of the conspiracy. In such a case, it would not matter that the conspiracy to obstruct the proceeding through other means, such as the phony electors scheme, did not ultimately succeed.

Trump fundraising email
Trump Fundraising E-mail

And Then There’s the Wire Fraud           

Compelling evidence emerged at the June 13 hearing about an entirely different area of potential criminal charges: what Committee member Zoe Lofgren (D-CA) called the “big rip-off”. Trump and his allies allegedly used the phony claims of election fraud to raise more than $250 million from donors for an “election defense fund” that apparently didn’t exist. Instead, money was diverted to Trump’s Political Action Committee and spent on other political projects and donations, including more than $200,000 that went to the Trump Hotel group.

This is an allegation of textbook wire fraud, 18 U.S.C. § 1343. There is a scheme to defraud: fundraising pitches making false claims of election fraud and promising to use donated funds to fight that supposed fraud, and then diversion of the money to other uses by the defendants. And there is the use of wireless transmissions in furtherance of the fraud: the fundraising emails and any electronic payments that were sent in. If I were writing a wire fraud hypothetical for a final exam, I couldn’t do any better.

Trump and his campaign might try to defend by claiming there was “fine print” at the bottom of the fundraising pitches that indicated the money could be used for other purposes. But if the overall design of those pitches is intended to deceive, slipping some fine print in at the bottom won’t prevent it from being considered a fraud. And the pitches also included knowingly false claims about the election being stolen as the reason for raising money, another indicator of fraud.

These additional potential criminal charges, teased by the Committee at the conclusion of the hearing, have no connection to the actual riot at the Capitol. The email solicitations could form the basis for a wire fraud case even if the assault on the Capitol had never taken place.

Bottom Line: It’s About More Than the Assault   

I think it’s useful to place all of the events being covered by these Committee hearings into two distinct categories. There’s the physical assault on the Capitol building on January 6, and there’s all of the non-violent efforts to overturn the election results — most of which took place prior to January 6. Criminal charges could be based on either.

Any potential defendant could be part of one, without being part of the other. The Proud Boys, Oath Keepers, or other rioters who attacked the Capitol (and who are now being prosecuted for that attack) likely had nothing to do with any of the other non-violent efforts to overturn the election. And someone who participated in the phony electors scheme or pressuring state election officials, for example, may have had nothing to do with the riot and may not have anticipated it at all.

We will have to see how any potential criminal charges ultimately shape up. But I could easily see a case alleging a conspiracy to overturn the election results though the various non-violent means that did not include the actual assault on the Capitol as part of that conspiracy. Charges based on the actual assault could proceed on a separate track, as hundreds of such cases already are. And with some defendants — including potentially Trump himself — there may be overlap between the two.

Viewed in this light, the assault on the Capitol is best seen as a tragic side effect of the much larger conspiracy to overturn the election. The attack ended up serving as a useful tool, because it bought the conspirators more time on that day to try to use other means to prevent the certification of Biden’s victory. But it was not essential to the conspiracy, need not have been one of its goals, and need not have been foreseen or planned by the co-conspirators. If the conspirators could have overturned the election peacefully through their various non-violent schemes, they would have done so – and it would still be a crime.

It makes sense for the January 6 Committee to spend much of its time showcasing for the American people the events that took place prior to January 6. The gravest danger to the country actually came not from the riot itself but from the schemes of those who sought to overturn the election through nonviolent means.

Security around the Capitol can be improved. Broken doors and windows can be repaired. Physical injuries can heal. Democracy itself may turn out to be more fragile.

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Thoughts on Durham and the Sussmann Prosecution

After deliberating for only a few hours following a two-week trial, a federal jury this week acquitted D.C. attorney Michael Sussmann on a single charge of lying to the FBI. The quick not-guilty verdict was no surprise; the flimsiness of the government’s case was apparent from the start. This was a case that never should have been charged. The Sussmann prosecution is a cautionary tale of the damage a prosecutor can do when he loses sight of the line between criminal justice and politics.

Michael Sussman speaking after the verdict
Sussmann speaking after the verdict

The Sussmann Indictment

Sussmann is a prominent D.C. attorney who represented the Hillary Clinton campaign and the Democratic National Committee during the months leading up to the 2016 presidential election. In September 2016 he brought computer data to the FBI that suggested possible links between Donald Trump’s presidential campaign and Alfa Bank, a Russian bank with ties to the Kremlin.

The Alfa Bank allegations became a minor part of Crossfire Hurricane, the FBI’s broader investigation into potential ties between the Trump campaign and Russia. That investigation ultimately concluded that the data provided by Sussmann did not establish the suspected connection between the bank and the Trump campaign.

Former president Trump, of course, complained repeatedly (and still complains) that the FBI’s Russia investigation was a hoax, that the FBI and Clinton campaign conspired against him, and that the Obama administration “spied” on Trump and his campaign. Trump’s attorney general William Barr was also critical of the FBI’s Russia probe. In May of 2019, he assigned John Durham, the U.S. Attorney for Connecticut, to lead an investigation into any potential criminal wrongdoing in the Crossfire Hurricane investigation. In October 2020, Barr appointed Durham as a special counsel to continue that same investigation, thus granting Durham more independence and ensuring that his work could continue even after the Trump administration left office.

Last fall, just before the five-year statute of limitations expired, Durham charged Sussmann with making a single false statement during his meeting with the FBI in 2016 about the Alfa Bank data. The indictment alleged that during the meeting Sussmann said he was not acting on behalf of any client in bringing the data to the FBI. In fact, according to the indictment, he was acting on behalf of the Clinton campaign and a tech executive who collected the data.

The False Statements Charge

Sussmann was charged with one count of False Statements, 18 U.S.C. § 1001, a very common white-collar charge that broadly prohibits lying to the federal government. Unlike the related crime of perjury, it does not require that the statement was under oath. The statute is commonly used to charge lies on various government forms or applications. If you’ve filled out any kind of federal government paperwork, you’ve probably seen a notation at the bottom about how providing false information may be a criminal offense chargeable under 18 U.S.C. § 1001.

False statements is also frequently used to charge witnesses with lying to the FBI. A recent high-profile example was the prosecution of president Trump’s former national security advisor Michael Flynn, who was prosecuted for lying to the FBI about his contacts with the Russian ambassador in the weeks leading up to Trump’s inauguration. Trump confidant Roger Stone was also convicted of 1001 for lying to Congress about his work for the Trump campaign related to Wikileaks and the release of Democratic emails stolen by Russian hackers.

In any false statements prosecution the government must prove that the statement was actually false, that the defendant acted knowingly and willfully, and that the statement was material. Durham’s prosecution of Sussman stumbled over each of these requirements.

Special Counsel John Durham
Special Counsel John Durham

The Challenge of Proving Actual Falsity

The government’s star witness at trial was James Baker, the former FBI general counsel who met with Sussmann about the Alfa Bank data. The prosecution’s entire case hinged on Baker’s memory of a single alleged statement from their 30-minute conversation nearly six years ago. The meeting was not recorded, Baker took no notes, and there were no other witnesses.

Baker claimed on the stand that he was “100% confident” Sussmann told him during the meeting that he was not there on behalf of a client. But Baker had given conflicting accounts in the past about what exactly Sussmann said during their meeting, and the defense was able to hammer away at those inconsistencies. Sussmann’s defense also pointed out that Baker said he could “not recall” more than 100 times while on the witness stand. Yet when it came to this one particular detail of their conversation, his memory was supposedly rock-solid.

Recalling from memory precisely what was said in a brief conversation six years ago is virtually impossible. Given the nature of memory and human language, differences in recollection about precise wording and details are inevitable. And when a criminal charge is based on deliberate lying, minor variations in exactly what was said can make all the difference.

For example, one issue that arose during the trial was the distinction between representing a client and doing a particular act on behalf of that client. There was no doubt that Sussmann represented the Clinton campaign, and there was no doubt that Baker and the FBI knew that. But, as the defense pointed out at trial, just because you represent a client doesn’t mean that every action you take is on that client’s behalf.

There was evidence at the trial that the Clinton campaign did not ask Sussmann to bring the Alfa Bank information to the FBI. The campaign would have preferred that the data simply be given to the media, because it did not trust the FBI and thought the existence of an active investigation might actually make it more difficult to get the story out. So it could easily be true both that Sussmann represented the Clinton campaign and that he was not acting on the campaign’s behalf during this particular meeting. At the very least, those kinds of subtle distinctions almost inevitably raise a reasonable doubt about what precisely happened during a brief meeting six years ago.

It’s interesting to note that if the crime were common-law perjury (which requires testimony under oath) rather than false statements, an ancient doctrine called the “two witness rule” would bar such a prosecution. The two witness rule holds that a perjury prosecution cannot be based simply on a swearing contest, one person’s word against another’s. Prosecutors must have at least two witnesses to prove an alleged perjurious statement, or one witness plus some other independent evidence that supports the allegation of perjury. More modern perjury statutes have done away with the two-witness rule, and there is no such rule when it comes to 18 U.S.C. § 1001. But the wisdom of that rule still applies: resting a criminal prosecution on such “he said – he said” evidence is necessarily shaky, and only gets shakier with the passage of time.

These inherent uncertainties based on the nature of language and memory are why bringing a stand-alone prosecution based on a single unrecorded false statement witnessed by only one person is almost unheard of. It’s almost the definition of a reasonable doubt. That would be enough to stop most prosecutors — but it didn’t stop Durham.

The Requirement of Materiality

In addition to proving what Sussmann actually said (which, as we’ve seen, was difficult enough), the government had to prove any lie was material — that it potentially mattered to the FBI. Here, too, the evidence in Sussman’s case fell far short.

The materiality requirement is usually not a significant hurdle for prosecutors. It means only that the statement had the potential to affect the actions of the government body to which the statement was directed. There’s no requirement that the government was actually influenced; in fact, a false statement can be material even if the government knows you are lying the instant that you utter it and never acts on it at all. All that matters is that the statement, by its nature, was the type that potentially could have made a difference.

Baker testified that if Sussmann had not allegedly made his false statement about not coming on behalf of any client, he would have treated the information with more suspicion or perhaps would not have agreed to meet at all. If believed, that testimony would be enough to establish materiality as a matter of law. But there were many reasons for the jury to doubt this evidence as well.

There was ample evidence – some of it contained in the indictment itself — that the FBI knew full well who Sussmann was and what clients he represented. Given what Baker knew about Sussmann’s clients and connections, there was little reason to believe he would have acted any differently even if Sussmann did claim to be providing the computer data solely as a good citizen. After all, this meeting was taking place less than two months before a hotly-contested presidential election. The FBI wasn’t receiving the information in a vacuum and could not divorce the information from what it knew about its source. And the evidence at trial established that the Bureau would have investigated the allegations regardless of their origins. That at the very least raised a reasonable doubt about the alleged statement’s materiality.

The jury’s quick verdict suggests that it saw the allegations against Sussmann for what they were: a big “so what.” Jurors interviewed after the verdict said the case should not have been prosecuted and that they thought the government has better things to do. In class I sometimes refer to this as the, “no harm, no foul” rule – it’s not really a legal doctrine, but it does get the idea across. As a prosecutor, if at the end of your trial the jury is looking at you and thinking, “Why did you waste our time with this?” — it doesn’t bode well for your case.

Donald Trump

A Political Prosecution

From the start, the Sussmann prosecution felt more political than criminal. The lengthy indictment sought to paint a broad picture of a supposed conspiracy involving Clinton campaign operatives and the FBI. But most of the alleged activities involved legal opposition research and had nothing to do with the actual charge against Sussmann. Trying to dig up dirt on an opposing campaign and get the media to run with it may be unsavory. But it’s not illegal, and is a standard practice — as the old saying goes, politics ain’t beanbag. Sussmann’s indictment seemed more designed to feed Trump’s fevered conspiracy theories than to lay out an actual criminal case.

Prosecutors at trial also sought to portray Sussmann’s supposed deception as part of a broader plot by the Clinton campaign to enlist the FBI in bringing down Trump. Prosecutors referred to Sussmann as a “privileged attorney” who tried to use his access to further his own political goals. In closing arguments, prosecutors argued that Sussmann and the Clinton campaign tried to engineer an “October surprise” involving the media and the FBI in order to damage Trump. To put it mildly, the jury didn’t buy it.

Some on the right will argue that, regardless of the outcome, Durham did a great service by bringing the case and “exposing” supposedly unsavory conduct by the FBI and the Clinton campaign. But criminal prosecution is about bringing specific, provable charges, not providing public reports on noncriminal conduct. The Department of Justice Inspector General already produced a lengthy report about the FBI’s handling of the allegations concerning the Trump campaign and Russia. That report concluded there were some legitimate problems with how certain aspects of the investigation were handled, but that the overall investigation was properly predicated and not politically motivated. It was not Durham’s job to create an alternate-universe version of those facts through the vehicle of a trumped-up criminal prosecution.

Of course, an acquittal does not necessarily mean that a prosecution was not righteous. But in this case, that’s exactly what it means. A federal prosecutor is not supposed to indict unless he or she believes there is likely sufficient evidence to convince a jury of guilt beyond a reasonable doubt. It’s hard to see how any prosecutor could have looked at the facts of the Sussmann case and reached that conclusion in good faith.

Sussmann’s acquittal means the system ultimately worked, but that is cold comfort. Merely being indicted and put on trial is a tremendous ordeal – one that Sussmann never should have had to endure. Good prosecutors never forget the tremendous responsibility that comes with the powers they wield. In Durham’s zeal to provide fodder for Trump’s “deep state” conspiracy theories, he appears to have lost sight of this fundamental principle.

Durham’s probe has now lasted more than three years, and he has remarkably little to show for it. He obtained one guilty plea to a minor charge involving a former FBI attorney who admitted altering an email. He has another pending case against a Russian national, Igor Danchenko, for allegedly making false statements to the FBI about his involvement in the controversial Steele dossier. It’s unclear whether Durham’s investigation will lead to any more prosecutions. The Sussmann verdict will surely increase the pressure on the Justice Department to bring it all to a close.

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