What the Justice Dept. Could Do Now After Trump Criminal Referral

Still, the obstruction count could apply much better to Mr. Trump’s behavior than to that of hundreds of ordinary rioters.

The law requires proving that any interference with a congressional proceeding be done “corruptly.” The committee said in its recommendations that Mr. Trump clearly acted with a “‘corrupt’ purpose” because he was warned in advance that several of his schemes to maintain his grip on power were illegal.

The committee also recommended that Mr. Trump and others be charged with conspiracy to defraud the United States, a count that has been used in several Justice Department cases against both far-right extremists and ordinary rioters who appeared to have planned in advance to storm the Capitol.

Again, this conspiracy charge may in fact better describe the evidence against Mr. Trump, who, according to the committee, defrauded the public by making constant false claims that the election had been rigged against him.

The most serious charge the panel has recommended against Mr. Trump is also likely to be the hardest to prove: insurrection. While the Justice Department has won a conviction on a related charge, seditious conspiracy, against Stewart Rhodes, the leader of the Oath Keepers militia, and is set to try five members of another far-right group, the Proud Boys, for sedition, it has not charged anyone with insurrection in more than 900 criminal cases.

Still, a federal judge in Washington laid the ground for a potential insurrection case against Mr. Trump in a ruling in February that permitted a series of Jan. 6-related civil cases filed against the former president to move forward.

In his ruling, the judge, Amit P. Mehta, said Mr. Trump was not merely exercising his First Amendment right to free speech when he called on the crowd listening to him on Jan. 6 to march on the Capitol and “fight like hell.”

Judge Mehta also found that there was a reasonable case to be made that Mr. Trump had aided and abetted those in the mob who assaulted the police at the Capitol — in part, by waiting so long to call publicly for the rioters to calm down. One of the ways that prosecutors could prove that Mr. Trump engaged in insurrection is by showing that he gave “aid and comfort” to others who took part in a rebellion against the government.

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