The sweeping indictment brought against Donald Trump in the Jan. 6 case touches on nearly every aspect of the former president’s plot to stay in power.
But a few eye-catching omissions in the high-profile case point to the complexities facing the Justice Department (DOJ), while raising questions about prosecutors’ future plans to hold to account those involved with Trump’s plans.
“The main thing that sticks out isn’t so much missing facts or missing charges, so much as the lack of co-defendants,” said Josh Stanton, an attorney with Perry Law who helped write a model prosecution memo analyzing the case.
“That is the most notable missing piece of this indictment.”
The indictment aligned closely with the report prepared by the House panel investigating the Jan. 6 attack on the Capitol, a high-level review of evidence laid out over the course of months of hearings, a format that allowed the public to hear directly from some witnesses.
However some conduct and testimony exposed by the congressional panel doesn’t feature prominently in the indictment.
“It’s only a 45-page summary, and obviously, the committee report was over 800 pages,” said Tom Joscelyn, a principal author of the panel’s report, who noted the indictment captures the Trump campaign effort to overturn the election “at every point they could.”
“They don’t have to put everything in the indictment. That’s just the summary of the case.”
When it comes to whom to hold responsible for the attack, the indictment likewise hews closely to the panel’s recommendations.
Trump’s indictment lists six co-conspirators in the effort to block the transition of power after the 2020 election, whose roles were largely highlighted by the committee, such as then-Trump attorney Rudy Giuliani and John Eastman, who drafted the memo laying out a plan for then-Vice President Mike Pence to buck his ceremonial duty to certify the election results.
But none of them have been charged yet, and while the list was expected to include just a fraction of those involved, there are notable exclusions.
The indictment makes few references to Trump’s chief of staff Mark Meadows, who was involved in numerous aspects of Trump’s plan, or nods to the lawmakers who routinely coordinated with the White House on various methods for fighting President Biden’s victory.
Meadows was a central figure in coordinating with lawmakers, as well as a participant in the campaign to pressure Justice Department officials to open investigations into baseless claims of election fraud.
“He’s maybe the highest-level omission from the indictment that could have been included. But I would note there’s likely dozens of other people that could have been included as potential unnamed co-conspirators,” said Stanton.
“This could have been an indictment that named 30-plus people, so there was some paring that had to happen in order to focus on just Trump.”
Meadows’s absence from the indictment has fueled speculation that he may be cooperating with DOJ in the matter.
George Terwilliger, Meadow’s attorney, did not respond to a request for comment.
“If Mark Meadows is a cooperating witness, you’re not going to necessarily reveal that in a speaking indictment. Because there’s also a strategy in supporting the charges with evidence that is already known and holding back key evidence for trial,” Soumya Dayananda, a senior investigator for the House Jan. 6 committee and an attorney now in private practice, told The Hill.
Also given little thought in the indictment are the lawmakers with whom Meadows coordinated, with the chief at one point writing after a meeting with Trump and GOP members of Congress that they were “preparing to fight back,” citing false claims of voter fraud.
Dayananda said the committee was not able to glean as much information about lawmaker involvement as it would have liked, pointing to lawmakers who rebuffed subpoenas issued by the panel.
The indictment does mention efforts of Trump associates to reach lawmakers on Jan. 6, but she said there’s a difference in being solicited by the team versus acting as a vital co-conspirator.
“It may be that evidence didn’t reveal a criminal intent to enter in any of the schemes, but rather that they intended to take advantage of a political situation to their benefit,” Dayananda said.
Stanton agreed, saying lawmakers would likely be able to push back on potential charges citing the Speech and Debate Clause as a defense, which protects members of Congress from being questioned about many of their activities outside that branch.
“Absent the Speech or Debate Clause, they would be very much at risk of prosecution for obstruction of an official proceeding or conspiracy to obstruct an official proceeding. But the Speech or Debate Clause casts a fairly wide net, and there’s a pretty good argument it would … protect here,” he said.
Joscelyn, now a fellow at the Reiss Center on Law and Security at the NYU School of Law, said its possible lawmakers’ activity could feature more heavily in any other indictments the special counsel might bring.
He pointed to the search warrant executed on Rep. Scott Perry (R-Pa.), who introduced Trump to former DOJ attorney Jeffrey Clark, one of the co-conspirators listed in the indictment and whom Trump mulled installing as attorney general.
“We know that [Smith] was investigating Congressman Scott Perry’s role with trying to install Jeffrey Clark as the acting Attorney General, and we don’t know where that came out. It may be that that is something that if there’s a subsequent indictment of Jeffrey Clark, maybe Perry played a role in that — who knows,” Joscelyn said.
The Justice Department also chose not to pursue any charges under the Insurrection Act, avoiding the rarely used charges that could have stripped Trump’s right to run for office even as he argues the broader prosecution is an effort to hinder his electoral prospects.
“It may well have been prudent for Smith not to pursue those charges because of the relatively spare history of such charges having been brought. Nonetheless, if you don’t bring insurrection charges in this type of case, it’s not clear that you can ever bring such charges,” Stanton said.
“The charges they pursued are run-of-the-mill charges including the deprivation of rights charge, which is less common than the other two, but one that has been brought on numerous occasions for election fraud type cases. So there are no novel legal theories here. It’s a relatively straightforward set of facts, [and] relatively straightforward legal case.”
Dayananda described it as a “carefully drafted indictment” from a DOJ that likely pursued only the charges where it could make the strongest case.
“I think that the charges adequately reflect the former president’s conduct and can be proven beyond a reasonable doubt,” she said.
“I think it’s fair in how they phrased it in the indictment, that the former president ‘exploited’ the violence. But inciting the violence is a different state of mind, which again requires evidence of intent beyond a reasonable doubt. If there wasn’t sufficient evidence, it shouldn’t be charged.”
Joscelyn said the strength of DOJ’s case — and the rationale behind some of its strategies — will come into sharper focus in an eventual trial, where the court might hear from Meadows or even Pence.
“There are some new details here and there that I think strengthen the case, especially when it comes to presenting in front of the jury,” he said, pointing to the inclusion of notes from Pence the committee never had.
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