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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Steve Bannon, Contempt, and Advice of Counsel

Former Trump aide and full-time provocateur Steve Bannon is facing trial on two criminal charges of contempt of Congress for defying a subpoena from the House January 6 Committee. The judge in his case just ruled that Bannon cannot defend against the charges by presenting evidence that he relied on the advice of his attorney when he failed to honor the subpoena. That’s clearly the right decision based on existing law. But although it’s impossible to feel sorry for Bannon, I’m not sure the rule against allowing an advice of counsel defense in this situation is really in the interest of justice.

Donald Trump and Steve Bannon

The Facts of Bannon’s Case

Bannon reportedly was deeply involved in the events leading up to the assault on the Capitol. The Committee subpoenaed Bannon on September 23, 2021, ordering him to produce documents on October 7 and appear for a deposition on October 14. He did not comply with either demand. Instead, his lawyer Robert Costello wrote to the Committee that Bannon would not honor the subpoena because former president Trump had claimed executive privilege over the requested information. Costello claimed Bannon therefore was “legally unable to comply” unless the Committee reached an agreement with Trump or obtained a court order on the scope of the privilege.

The Committee Chairman, Rep. Bennie Thompson, wrote back to Costello and rejected those claims. Thompson pointed out that most of the requested information related to Bannon’s activities as a private citizen and that Trump had made no formal assertions of privilege. Thompson warned that if Bannon failed to comply with the subpoena the Committee would consider him to be in contempt.

In additional back-and-forth correspondence, Costello again claimed that Bannon could not comply and Thompson again rejected those claims. Bannon did not produce any documents and did not appear for the deposition. On October 21, the House voted to hold Bannon in contempt and referred the matter to the Department of Justice. On November 12, a grand jury indicted him on two counts of Contempt of Congress.

Contempt of Congress

The contempt of Congress statute, 2 U.S.C. § 192, provides in part:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House . . . willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. (emphasis mine)

If a witness is found in contempt by the full House or Senate, 2 U.S.C. § 194 provides that Congress shall certify the matter to the United States attorney, “whose duty it shall be to bring the matter before the grand jury for its action.”

As I’ve written before, this statute has, shall we say, some issues. For one, it is a completely inadequate tool for enforcing Congressional subpoenas. Prosecution doesn’t compel the witness to testify, it merely punishes the witness for the contempt after the fact. If the goal is to get the relevant information from the witness – which usually should be the goal, at least — this criminal sanction does not accomplish that.

There’s also the interesting wrinkle that, although the statute says the U.S. Attorney has the “duty” to present the case to a grand jury, Justice Departments of both political parties have taken the position that “duty” doesn’t mean “obligation.” When a witness from the executive branch is held in contempt by Congress (usually one controlled by the other political party), the Justice Department routinely declines to prosecute, based on concerns about the separation of powers and executive privilege. As a result, most such referrals from Congress go nowhere.

Bannon was in a different posture because he was not part of the current administration when he was found in contempt, and DOJ was controlled by the other political party. He was the first person in years to be indicted for this offense.

The Advice of Counsel Defense

The primary defense Bannon wanted to raise at trial was, “My lawyer told me it was OK.” Bannon sought to argue the government could not prove he acted “willfully,” as required by the contempt statute, because he was acting in good-faith reliance on the advice of his attorney.

This “advice of counsel” defense can defeat the required proof of criminal intent in a narrow category of cases. Generally the criminal law holds that people are responsible for their own knowing actions and, as the old saying goes, ignorance of the law is no excuse. For most crimes the government need only prove that the defendant intended to do the acts that constitute the offense, not that the defendant knew he was violating the law. To take an extreme example, if I commit a robbery or a burglary I will not be allowed to defend by claiming I didn’t know robbery or burglary were against the law or that my lawyer told me it was OK.

But for some criminal violations, the government is required to prove a higher level of intent. This intent requirement can be expressed in different ways: specific intent, or evil intent, or acting in violation of a known legal duty. In such cases, ignorance of the law can, in fact, be an excuse. If your attorney told you that what you were doing was lawful, that advice could defeat the government’s proof of your intent.

This higher level of intent is sometimes expressed in criminal statutes by the requirement that the defendant acted “willfully.” That was Bannon’s argument when it comes to contempt of Congress: he claimed that because the statute requires that his default was “willful,” the government had to prove he deliberately disregarded a known legal duty. If that were the standard, then Bannon could raise an advice of counsel defense.

The Definition of Willful

The definition of “willful” is a confusing area of criminal law. The Supreme Court has noted that willful has a different meaning in different criminal statutes and its meaning often depends on the context. Sometimes it does mean the government must prove a defendant knew he was violating the law. But for most statutes, it means simply that the defendant’s conduct was knowing and intentional, rather than accidental.

In their court papers, Bannon’s attorneys cited cases such as the Supreme Court’s leading decision in Ratzlaf v. United States to argue that “willful” means the government must prove Bannon knew his defiance of the subpoena was unlawful. Ratzlaf involved violations of the currency structuring laws, which prohibit “willfully” breaking up cash transactions into amounts under $10,000 so the banks won’t file any currency transaction reports.

The Court noted that breaking down financial transactions into smaller amounts is not obviously evil. The average person would not necessarily be on notice that it might be criminal. In the context of the structuring statute, therefore, the Court held it was not enough that the government prove the defendant knew his conduct would result in the reports not being filed. The requirement of “willfulness” meant the government also had to prove the defendant knew that structuring was unlawful.

The same standard applies in tax crimes, where the Court also has interpreted willfully to mean prosecutors must prove the defendant knowingly violated the tax law. Another example is campaign finance violations, such as the one Trump’s former attorney Michael Cohen pleaded guilty to in connection with the Stormy Daniels payoff. Criminal campaign finance violations require proof the defendant acted willfully, which courts have interpreted to mean the defendant must have known his actions violated campaign finance law.

What these crimes have in common is that they are complex and quasi-regulatory. They contain legal prohibitions that are purely creatures of statute, not so-called “Ten Commandment crimes.” The conduct involved is not inherently evil and an ordinary citizen would not necessarily be on notice of the criminal implications. As the Court has noted, they involve “highly technical statutes that presented the danger of ensnaring individuals engaged in apparently innocent conduct.” Before holding someone criminally responsible for such crimes, therefore, due process requires the government to prove the defendant knew about the relevant legal requirements. 

But this heightened requirement of willfulness remains the exception, not the rule. When interpreting statutes, the general rule is still that “willful” means simply consciousness of the act itself, not consciousness that the act is unlawful. Ignorance of the law usually is still no excuse — which means it’s irrelevant if your lawyer gave you bad advice.

The Licavoli Case

Bannon argued that the requirement of willfulness in the contempt statute should be interpreted to require the known violation of a legal duty, just like tax or campaign crimes. Unfortunately for Bannon, there is an old D.C. Circuit case that squarely rejects his argument. In Licavoli v. United States (1961) the defendant was charged under the same contempt statute for failing to respond to a subpoena from the U.S. Senate. He argued the government could not prove he had acted willfully because he had relied on the advice of his attorney.

The Court of Appeals held that “willful” in the contempt statute does not require proof of an evil intent or knowing violation of the law. Any witness who deliberately and intentionally fails to appear, the court held, “willfully makes default” under the statute. The requirement of willfulness serves only to distinguish deliberate decisions not to appear from failures to appear caused by other reasons, such as illness or travel delays. “All that is needed . . . is a deliberate intention to do the act. Advice of counsel does not immunize that simple intention. It might immunize if evil motive or purpose were an element of the offense. But such motive or purpose is not an element of either of these offenses.”

In other words, the crime of contempt is relatively simple: if you are properly served with a subpoena, you must honor it. You don’t get to ignore it and then claim later that your lawyer said it was OK. The crime is more like a robbery or burglary than like a tax crime or structuring. If you make the deliberate decision to defy the subpoena, you are responsible for the consequences of your actions – just as with most criminal offenses.

Not surprisingly, in light of Licavoli, U.S. District Judge Carl Nichols ruled that Bannon may not present evidence of his attorney’s advice at his trial. Bannon’s attorneys argued that this case was different because of the potential issues of executive privilege involved. But the government successfully countered that the only relevant issue was Bannon’s intent, and the nature of any potential privilege did not affect that question.

Steve Bannon
Steve Bannon

Advice of Counsel, Contempt, and Executive Privilege

Judge Nichols noted that, if he were writing on a clean slate and was not bound by the Licavoli precedent, he might agree with Bannon that the advice of counsel defense should be allowed. I might agree as well.

I understand the reason behind the general rule that advice of counsel is not a defense to contempt – particularly when it comes to not showing up at all in response to a subpoena, as Bannon did. If it were a defense, it would be far too easy for witnesses to ignore subpoenas simply by claiming their lawyer told them they have some kind of privilege. This would severely undermine the subpoena power of Congress – and of the courts, for that matter. Generally, even if you claim a privilege, you need to show up in response to the subpoena and assert that privilege in person.

That being said — the result in this case doesn’t feel right to me. I can’t bring myself to type the words that I sympathize with – well, you-know-who – but I can sympathize with someone in his position. It’s important to consider the general rule here, divorced from the particular context of January 6 and Bannon.

Suppose you received a subpoena from a Congressional committee — what would you likely do? You’d talk to a lawyer. Suppose your lawyer tells you that you don’t need to respond and gives you some facially plausible legal reasons why. Suppose further that lawyers for the former president of the United States say the same thing and ask you not to comply. You’re not a lawyer. If you do what we normally expect people to do, follow your lawyer’s advice, and are prosecuted, is your only remedy to sue your attorney for malpractice from your jail cell?

This entire proceeding involves legal battles, and complicated ones at that. Issues of executive privilege are not well-settled. And there are some opinions from the DOJ Office of Legal Counsel arguing that executive branch officials need not show up at all in response to a Congressional subpoena. Sure, these opinions are controversial, but they do exist. Yes, I know, Bannon was no longer in the executive branch by January 6. But whether and to what extent executive privilege survives once an individual leaves the government is also an unsettled question.

Still, overall, Bannon’s executive privilege claims seem very weak, particularly the claim that he could refuse to show up at all. Many would argue that the advice Bannon received was frivolous, or that his lawyer was incompetent, given that weakness. But if it turns out a lawyer was incompetent, should the client go to jail as a result?

It seems likely that Bannon was primarily interested in trying to stonewall the Committee and would have latched onto any excuse to avoid cooperating. But the reliance on advice of counsel has to be in good faith. If the government could demonstrate that the supposed reliance on legal advice was just an excuse to refuse to cooperate, the jury should reject the defense. But that’s different from saying Bannon should not even get to present the argument to the jury for its consideration.

Legal proceedings in general, and fights over things like executive privilege, have gotten a lot more complex in the sixty years since Licavoli. And as Bannon’s lawyers argued, most of the Supreme Court decisions approving the stricter requirement of “willfulness” were decided well after Licavoli. A battle over a subpoena involving the notoriously murky area of executive privilege seems more like a tax or structuring case to me than a burglary or robbery. I’m not sure the average citizen should be expected to know what the law requires. And I’m not sure we should expect witnesses in such cases to ignore the advice of their attorneys, on penalty of criminal contempt.

Judge Nichols didn’t have any choice but to follow the binding precedent of Licavoli. But if Bannon is convicted, he might have a good shot at convincing the D.C. Circuit to take another look at this issue. I’d feel happier about this prospect if the case involved someone less odious than Bannon – but even the odious are entitled to due process.

What all of this highlights once again is the inadequacy of this contempt procedure as a way to enforce Congressional subpoenas. Congress needs to revive some form of its inherent contempt power so that it can seek to compel compliance by witnesses on its own, rather than relying on the Department of Justice and lengthy court proceedings. And the remedy would be that Congress actually gets the information, rather than a misdemeanor prosecution that might not conclude until well after the Congressional investigation is over.

But for now, the Bannon case will proceed to trial, there will be no advice of counsel defense, and the January 6 committee will almost certainly conclude its work without obtaining Bannon’s information.

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