As expected, today the House January 6 Select Committee held a nearly two-hour public business meeting at which it approved four criminal referrals on former President Donald Trump to the Department of Justice. The specific alleged statutory violations were:
- Obstruction of an Official Proceeding (18 U.S.C. § 1512(c))
- Conspiracy to Defraud the United States (18 U.S.C. § 371)
- Conspiracy to Make a False Statement (18 U.S.C. §§ 371, 1001)
- “Incite,” “Assist” or “Aid and Comfort” an Insurrection (18 U.S.C. § 2383)
The Select Committee also voted to approve its final report without amendment and transmit it to the full House and the public printer. It is expected that the full report, likely accompanied by substantial supporting materials, will be issued later this week, perhaps as early as Wednesday.
In the 154+ page Executive Summary released today, the committee made the following observation on p. 48 about domestic intelligence collection in the pre-January 6, 2021 period as it pertained to President Trump:
No intelligence collection was apparently performed on President Trump’s plans for January 6th, nor was there any analysis performed on what he might do to exacerbate potential violence. Certain Republican members of Congress who were working with Trump and the Giuliani team may have had insight on this particular risk, but none appear to have alerted the Capitol Police or any other law enforcement authority.
The violence and attempted obstruction of the certification of the 2020 presidential election results that happened on January 6, 2021 at the Capitol was clearly not First Amendment protected activity. But this insinuation—that federal intelligence and law enforcement agencies should have targeted the communications of a still-sitting chief executive while his legal appeals were making their way through federal courts—is deeply disturbing.
Trump’s public calls for his supporters to rally in DC in support of him and his court appeals were, by themselves, clearly First Amendment protected activities. We will learn later this week whether the Select Committee’s soon-to-be-revealed legislative recommendations include a call for some kind of expanded domestic surveillance authorities that may be at odds with the First and Fourth Amendments.
