After the first year of investigations into the January 6 insurrection, which the House in authorizing its Select Committee termed a “domestic terrorist attack,” there is extensive evidence that the assault was instigated and incited by then-President Donald Trump. In precipitating the mob attack on the Capitol, Trump acted in concert with key officials in the White House, the Congress, state legislatures, and the Republican Party with the goal of stopping the certification of Joe Biden as the winner of the Electoral College and preventing Biden from rightfully becoming president. Far more than mere norms and standards were willfully ignored in this plot to overturn the election result and keep Trump in office. Federal and state laws were violated with the goal of circumventing the intent of the Constitution.
Numerous identifiable concrete acts by Trump and his confederates led directly to the January 6 insurrection, which was undertaken for the purpose of seeking to overturn valid election results by the use of force. Under U.S. law, Trump and those who collaborated with him violated statutes criminalizing such attacks on federal and state voting rights, as well as a host of other federal laws.
Most fundamentally, these acts constituted a “conspiracy against rights,” as defined by the applicable federal civil rights criminal statute (Title 18, U.S. Code 241). Team Trump also perpetrated a scheme involving public officials to contravene the “one person, one vote” principle of the Fourteenth Amendment, in violation of a second federal criminal law, “deprivation of rights under color of law” (Title 18, U.S. Code 242). The term “color of law” refers to the use of governmental authority for a purpose that is unlawful. Trump and those who participated in these schemes are also culpable for incitement to commit an insurrection under a specific federal criminal law enacted during the Civil War directed at Southern secessionists and their aiders and abettors.
Both of these civil rights federal criminal statutes have extensive histories; violations of the former statute are punishable with a sentence of up to 10 years in prison and of the latter statute just one year but increased to 10 years when someone has been injured. The sentences can extend to life imprisonment or even capital punishment when someone has been killed in connection with such crimes. To that point, five people died during or as a consequence of the January 11 insurrection, including Capitol Police officer Brian Sicknick, while more than 140 police suffered concussions, rib fractures, burns, and bodily mutilation.
More than 700 Americans who participated in direct physical action to “breach the Capitol”—the euphemism used by the Justice Department to describe the insurrection—have now been indicted for their roles in physically shutting down the Congress as it was engaged in its constitutionally mandated responsibility to count Electoral College votes on January 6.
Almost all of those charged were foot soldiers, prosecuted for such routine, low-level offenses as knowingly entering or remaining in any restricted building or grounds without lawful authority; disorderly and disruptive conduct in a restricted building or grounds; parading, demonstrating or picketing in a Capitol building; theft of government property; entering and remaining on the floor of Congress; and disorderly conduct in a Capitol building. A small subset of the accused, some 45 of those who participated in person in the physical attack, including members of vigilante groups like the Proud Boys and Oath Keepers, have been charged with the more serious crime of conspiracy to obstruct a Congressional proceeding, through violence aimed at stopping Congress from moving forward with the process that would ratify Biden’s election as president.
But to date, except for those who were physically present at the insurrection, no one has been indicted for any of the actions that preceded and led to the mob attack on the Capitol, such as planning, scheduling, organizing, arranging, paying for, inciting, or otherwise causing the January 6 insurrection to occur.
The lack of ringleader indictments is notable. The attack on the Capitol was not spontaneous, nor was its timing a coincidence. It had a political purpose from the outset: a last-ditch effort by Trump and his supporters to immobilize the electoral vote count long enough to enable Republican state legislatures to rescind the certifications of the electoral vote count they had already submitted. Their plan in seven states was then to replace the legitimate electors with Trump electors—despite the fact that Trump had lost the vote in those states—thereby carrying out what I have previously described as a constitutional coup
The drumbeat for politically motivated violence began immediately after the November 3 election. Two days later, former Trump campaign strategist and White House official Steve Bannon urged beheading FBI Director Christopher Wray and U.S. public health chief Anthony Fauci and placing their heads on pikes outside the White House. That same day, Trump’s son Donald Trump Jr., speaking at a rally in Georgia, advocated “total war over the election.” Vernon Jones, a Republican state representative addressing the rally, declared, “We’re starting now to see the white in their eyes, and we’re getting ready to start shooting.”
As the official Trial Memorandum prepared by the House of Representatives for its second impeachment of Trump explains, Trump acted as the convenor of the January 6 insurrection with his December 19, 2020, tweet, “Big Protest in D.C. on January 6. Be there, will be wild!” It was timed exactly for the date the electoral vote count was to take place. Immediately thereafter, armed far-right groups like the Proud Boys, conspiracy theorists, and white supremacists began organizing to come to Washington on the day Trump stipulated. By January 5, Bannon, in his War Room podcast, crystallized the prediction of mayhem into a new incitement that “all hell will break loose tomorrow.”
On the morning of January 6, the incitement launched with Trump’s in-person pre-insurrection speech on the Ellipse on the National Mall, when he told his supporters to walk down Pennsylvania Avenue to the Capitol to “fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.”
Trump’s lawyer, Rudy Giuliani, told the assembled followers it was time for “trial by combat”; and another Trump lawyer, John Eastman, one of those master-minding the effort to stop the electoral count certification, told the crowd that the vote to certify the elections for president needed to be delayed because “dead people voted.” Then Republican Congressman Mo Brooks of Alabama declared: “Today is the day American patriots start taking down names and kicking ass,” derided “weakling, cowering, wimpy Republican congressmen and senators who covet power and the prestige the swamp has to offer while groveling at the feet of the special interest masters,” and called for revolution: “Now our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives to give us—their descendants—an America that is the greatest nation in the world’s history. So I have a question for you: Are you willing to do the same?” North Carolina Congressman Madison Cawthorn exhorted the crowd to stop Biden’s certification, “This crowd has some fight in it.”
The House Trial Memorandum for Trump’s second impeachment summarized how Trump’s effort to overturn the election led directly to the insurrection. In its words: “Trump fixated on January 6, 2021—the date of the Joint Session of Congress—as presenting his last, best hope to reverse the election results and remain in power. Even as he continued improperly to pressure state officials, DOJ, and Members of Congress to overturn the electoral outcome, he sharply escalated his public statements, using more incendiary and violent language to urge supporters to ‘stop the steal’ on January 6. . . . These statements turned his ‘wild’ rally on January 6 into a powder keg waiting to blow. Indeed, it was obvious and entirely foreseeable that the furious crowd assembled before President Trump at the ‘Save America Rally’ on January 6 was primed (and prepared) for violence if he lit a spark.” The House’s January 13, 2021, Article of Impeachment then expressly linked Trump’s incitement of the insurrection to his effort to “subvert and obstruct the certification of the results of the 2020 Presidential election.”
Trump’s actions not only constituted a basis for impeaching him, as found by bipartisan majorities in both the House and Senate (including 57 senators out of the 67 required for his removal from and permanent disqualification from holding federal office). They also meet the test of the federal crime of incitement: “solicitation to commit a crime of violence.” Such an indictment is not complicated to plead. The Justice Department helpfully provides a template to be filled in for such an indictment:
“On or about the _____ day of _________ 19___, in the ____________ District of ___________, the defendant, _____________, with intent that _____________ engage in conduct constituting a felony that has as an element the use [attempted use] [threatened use] of physical force against the person [property] of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, did solicit, command, induce and endeavor to persuade, _______________, to engage in such conduct, that is, [describe crime, e.g., to murder an officer of the United States in violation of Title 18, United States Code, Section 1114], in violation of Title 18, United States Code, Section 373.]
The federal criminal code (18 U.S. Code §2383) contains a further, separate, and special crime when a person incites others to undertake an insurrection or gives them “aid and comfort.” That crime is not only punishable by up to 10 years in prison but also includes the further penalty of making the perpetrator ineligible for ever holding any kind of public office “under the United States.” The statute, adopted originally in 1862, seems custom-made for the particular actions undertaken by Trump and other Republican public officials on January 6, in addition to those he and others undertook to bring the insurrectionists to Washington on that date in the first place. Indicting and convicting Trump for this offense, with this penalty, is especially appropriate given his actions.
(Notably, some right-wing law professors are already preemptively arguing that disbarment from office cannot constitutionally apply to elected officials—i.e., Trump—only to appointed ones. They cite Alexander Hamilton’s writings in the Federalist Papers from 1777–8 to make this case and to negate the clear intent and purpose of the drafters of the 1862 provision, which was written to apply to the supporters of the insurrection by the Confederacy against the Union in the Civil War.)
Beyond Trump, others undertook direct efforts to intimidate state election officers, including explicit death threats, especially in swing states such as Arizona, Georgia, Michigan, and Pennsylvania, in the days following the November 3 elections. That reign of intimidation arose with the goal of stopping the officials from counting votes for Biden. Such acts appear to violate the federal law that makes physical threats or reprisals against election officials criminal offenses.
At the core of the conspiracy was the nationwide effort involving Trump and others, including other federal and state officials, to deprive the American people of their right to choose their president through voting. The Supreme Court has long recognized that the right to vote for federal offices is secured by Article 1, Sections 2 and 4 of the Constitution. As a result, the right to vote is specifically within the coverage of the federal law criminalizing any conspiracy to deny people the right to vote or to prevent their vote from being counted. This includes any action to prevent an official count of ballots in an election, any effort to alter votes, and any effort to omit the counting of votes and make false election returns.
Significantly, the federal crime of conspiring to prevent citizens from being able to have their votes counted does not require that the conspiracy succeed. What is required is that there be an actual agreement between two or more persons to accomplish the prohibited objective of overturning lawful election results.
Along with the violent rhetoric, attempts to throw out lawfully cast ballots in order to overturn the election results also began soon after Election Day. On November 16, 2020, Georgia Secretary of State Brad Raffensperger reported that Republican Senator Lindsay Graham of South Carolina had called him to see if he could throw out mail ballots that Raffensperger had previously found to have been cast lawfully. The same day, two Republican members of an election board in Wayne County, Michigan, refused to certify Detroit’s election results, a decision they reversed only after people pointed out that 78 percent of the city’s residents were Black and that white precincts had been certified by the same board. On December 8, Trump contacted the Republican Speaker of the Pennsylvania House of Representatives, asking him to take action to reverse Trump’s loss in the state, after doing the same four days earlier with Georgia Republican Governor Brian Kemp, asking him to overturn the state’s vote for Biden and replace Biden’s electors with ones for Trump.
These efforts culminated in Trump’s infamous January 2, 2021, phone call to Raffensperger, cited by the House in its January 13 Article of Impeachment, in which Trump directly asked the Georgia secretary of state “to find 11,780 votes, which is one more than we have because we won the state.”
Trump’s conduct in all these interventions meets each of the elements of the two federal criminal statutes covering conspiracies against voting rights and deprivation of voting rights under color of law. Throughout, he used his position as a federal official—president—for the illicit purpose of trying to overturn the election results. And in all of this, he was far from alone: the failure of the collective attempts of Trump and his co-conspirators to throw out the electoral votes for president that had been accurately determined under the applicable federal and state laws and the Constitution became the predicate for the further incitement and organization of the January 6 insurrection.
As Trump’s efforts to overturn the election became more frenzied, the Council for National Policy (CNP), an umbrella organization of highly placed conservatives supporting Trump, issued a manifesto.
As originally reported in the Spectator in February 2021 by Anne Nelson, that document, signed by a “who’s who” of right-wing Trump-aligned activists, declared that Biden’s victory was unlawful and invalid. It called on Republican-controlled legislatures in six swing states where a majority of the voters had chosen Biden to appoint alternative electors to vote for Trump in the Electoral College, and asked the House and Senate “to object to and reject any competing slates in favor of Vice President Biden from these states.” The manifesto further stated: “Conservative leaders and groups should begin mobilizing immediately to contact their state legislators, as well as their representatives in the House and Senate, to demand that clean slates of electors be appointed in the manner laid out in the U.S. Constitution.”
The CNP manifesto contained a hot link to a 21-page white paper, dated December 8, which laid out alleged election irregularities in detail. The unnamed author claimed these irregularities should justify declaring the presidential elections “null and void” in five states where the Republican party controlled both houses of the state legislatures (Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin), and called for them to be overruled. The CNP-linked white paper provided a blueprint for the activities Trump and his Republican collaborators carried out over the next four weeks to prevent the January 6 certification of the Electoral College that would confirm the Biden victory.
Based on the public record to date, Trump’s collaborators in these schemes from within the U.S. government included Trump’s chief of staff, Mark Meadows; lieutenants in Congress, such as Jim Jordan of Ohio, Scott Perry of Pennsylvania, and Justice Department official Jeffrey Bossert Clark, who sought to turn the DOJ into a political instrument to invalidate elections in states where Republican-controlled legislatures could then flip the results and thereby keep Trump in power. They also included aiders and abettors in statehouses, such as Pennsylvania Representative Doug Mastriano, who arranged and used campaign funds to pay for a bus to transport January 6 insurrectionists to Washington, D.C.; and Arizona Representative Mark Finchem, whose tweets and text messages show him to have been at the Capitol during the insurrection and coordinating with Ali Alexander, the Trump activist who helped organize the January 6 Stop the Steal events and led pre-insurrection chants calling for “victory or death.”
These figures interacted with many others across the country to take concrete steps with the unlawful goal of overturning the results of the election. A glaring clue to the breadth and orchestration of the conspiracy is found in the fact that in each of the five states identified in the CNP white paper (as well as in two others, Nevada and New Mexico), Trump electors met synchronously on December 14, 2020, to vote for Trump and send their votes to Vice President Pence.
Unfortunately, there has been little comment on the significance of this highly concerted effort to convene “Trump electors” in swing states to join together, without a constitutional basis under federal or state law, and then to send their illegitimate ballots to Vice President Pence as if they were valid and equal to the certified electoral votes submitted from those same states for Biden.
The public record does not yet document precisely who organized the scheme for Trump electors to cast these invalid electoral votes in the seven most contested states. An investigation of this unprecedented, multistate and clearly coordinated action would expose who laid the groundwork for delaying congressional certification of Biden’s victory and provided the impetus for the mob to attack the Capitol.
There is yet another clue to the importance of this aspect of the plot. On that very day, December 14, Attorney General William Barr announced his resignation, stating he had just briefed Trump on “voter fraud allegations” and “how these allegations will continue to be pursued.” Given the ongoing conspiracies to overturn the results of a legitimate election, including the improper casting of votes by the Trump electors in the states he had lost, the timing of the Barr resignation leads to the obvious question: What did Bill Barr know, and when did he know it? And one that may be less obvious: Was Barr concerned that senior federal officials seeking to overturn the election as January 6 approached might themselves wind up with criminal liability?
The House Select Committee to Investigate the January 6th Attack on the United States Capitol has issued more than 50 subpoenas, reportedly interviewed more than 300 witnesses, and made three criminal referrals to the Justice Department for criminal contempt (Mark Randall Meadows, Jeffrey B. Clark, and Steven K. Bannon), but to date it has held only one public hearing. On December 27, The Washington Post reported that the Committee intends to hold extensive public hearings beginning early in 2022 and continuing through the summer. These hearings are said to include tracking the money that paid for the “Stop the Steal” rallies and the pressure campaigns to overturn the election results and delay the electoral certification. The hearings are also likely to provide the foundation for decisions by the committee to make criminal referrals covering the major figures, in addition to Trump, whose actions played a material role in leading to the January 6 “domestic terrorist attack.”
On the eve of the committee’s public phase, one basic truth must be recognized: there was indeed a conspiracy to invalidate a lawful presidential election. There should be no doubt that this conspiracy violated U.S. criminal laws protecting the right to vote and to have those votes counted. Nor should there be any doubt that Donald Trump personally incited the insurrection on January 6. Convicting him of that crime alone would create a significant, if not necessarily insurmountable, barrier to his holding the presidency again. Nor should any of his confederates, including members of the Congress, escape the long arm of the law.
Whatever the committee does, it is ultimately up to the Justice Department to review the facts and to apply the relevant federal criminal law impartially. There’s no sign that the Justice Department is undertaking this work, despite the extensive existing public evidence of violations of federal law by Trump and those who conspired with him. Given the scope of its investigation, it’s reasonable to assume the committee will find even more such evidence. Failure by the Justice Department to apply justice to all those whose activities contributed to the insurrection, rather than just to the foot soldiers, risks allowing impunity, rather than the law, to determine the future of our democracy.
Jonathan Winer is a Washington lawyer who previously served as the State Department’s senior official for international law enforcement, and a member of Keep Our Republic, a group focused on protecting American democracy.