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Jan. 6 CMTE Refers Trump To DOJ On Four Criminal Charges; Rep. Zoe Lofgren (D-CA) Discusses About The Referral Of Criminal Of Donald Trump To Department Of Justice. Aired 3-3:30p ET

Aired December 19, 2022 - 15:00   ET


JAKE TAPPER, CNN HOST: Nearly two years after the U.S. Capitol was violently attacked, the January 6 Select House Committee is recommending that Donald Trump be prosecuted on four criminal charges. The panel laying out extensive evidence for the Justice Department and for the public making the case that then-President Trump was ultimately chiefly responsible for the insurrection.

We're back with our live coverage of the unprecedented criminal referrals against Donald Trump that were announced during the final public meeting of the House Select Committee just a few minutes ago. Panel members concluding unanimously that there is more than sufficient cause to charge Trump with the very serious and frankly rare charge of assisting or aiding and insurrection.

The Committee also recommending that Trump be charged with conspiracy to defraud the United States and conspiracy to make false statements, rounding out the for criminal referrals against Trump. A recommendation that he'd be charged with obstruction of an official proceeding, that stems from the efforts to thwart the certification of the 2020 presidential results on January 6th 2021.

We're breaking down all the Committee's recommendations, what it means for the Justice Department's investigation. Sara Murray is on Capitol Hill for us right now. And Sara, the Committee just released the executive summary, 160 pages or so of its final report, which will be much, much longer. Break it down for us?

SARA MURRAY, CNN POLITICAL CORRESPONDENT: Well, look, I think there were a number of things that they point out in this executive summary. That could also be of interest to the Department of Justice beyond these criminal referrals that they just did. I mean, one of them we heard a little bit about in the hearing and it's their concern that there were lawyers paid for by Donald Trump or allied groups that were incentivized to protect Trump rather than the witnesses.

They lay out that in one case, a witness was told to say she didn't recall things when she actually did, when she brought up with her lawyer that there was territory she may go in that would be potentially look bad for Trump. The lawyer advised her, no, no, no, we don't want to go there.

That is certainly something the committee took pains to lay out. They also pointed out that Donald Trump was contacting witnesses before their testimony to the Select Committee, writing in their executive summary. The Select Committee is aware of multiple efforts by President Trump to contact Select Committee witnesses, the Department of Justice is aware of at least one of those circumstances.

They will also lay out in this executive summary a couple instances where they heard conflicting accounts of events from witnesses the Committee talked to. One of those - we remember Cassidy Hutchinson bombshell testimony. She said Tony Ornato sort of told her about this incident where Trump became irate, Ornato told the Committee he could not recall and in their executive summary, the Committee says over and over again, they have serious questions about Ornato's credibility. Jake?

TAPPER: All right. Sara Murray, thanks so much.

And joining us now here in studio, former FBI Deputy Director Andrew McCabe, former Justice Department official and Congressional Ethics Committee expert, David Laufman, and the former Republican Congressman Charlie Dent who served as the chairman of the House Ethics Committee. Thanks one and all for being here.

Let me start with you, Andy McCabe. Insurrection is a rarely cited criminal offense, hard to prove, very rarely prosecuted, what is the Justice Department going to do with that referral?

ANDREW MCCABE, CNN SENIOR LAW ENFORCEMENT ANALYST: Well, it's a rarely prosecuted and, thank God, right, we don't typically have attacks on the nation's Capitol. The DOJ is going to look very closely at every piece of evidence they get as a part of this report and a part of this handoff. But there are all sorts of things built into a successful prosecution of insurrection that haven't really been addressed in this report, at least from the summary that we've seen today.

Let's remember, the standard that they appear to be using is they think there is sufficient evidence to make a referral. That is a far cry from the department's standard to indict, which is we think there's enough evidence to prove these charges beyond a reasonable doubt at trial and to sustain a conviction on appeal. So the department's work is far more in depth than what we're reading today.

TAPPER: That's an interesting point, because I would guess that if you're members of the Committee, you're thinking we can't allow this to pass. We have to do something. We think that the president committed these crimes and we really, truly do and here's the evidence we have. But they don't have to prove it in a court of law.

MCCABE: That's right.

TAPPER: And that is a burden for prosecutors. You - is - do never - prosecutors never take a case that they don't think that they can prove in a court of law? I mean, isn't it sometimes important just to even try?

MCCABE: Of course it is, right? And that's not to say that prosecutors won't take a chance on a case that has maybe some problems and some evidentiary issues built into it. But the standard in the Department of Justice used to be called the U.S. Attorney's manual and they've changed the name recently. The standard for federal prosecutors around the country is do not indict a case unless you believe you have the evidence sufficient to win at trial and to sustain that conviction on appeal.


TAPPER: Which is funny because the standard - like a DA's office in Philadelphia, I'm a little familiar with that. It's a much lower standard.

MCCABE: That's absolutely true.

TAPPER: It's just put it up and see what the jury does.

MCCABE: See what happens.

TAPPER: Let's talk about the House Ethics Committee, because I think one of the big questions is what's going to happen to the members of the House that just - that either participated like allegedly Congressman Scott Perry of Pennsylvania or just refuse to comply with the subpoena. Now, the House Select Committee just announced that they are referring - there were five people who didn't cooperate with the subpoena, one of them is no longer congressman - at Congress, Congressman Mo Brooks, there are four others. What do you think - Charlie Dent, you used to be the chair of the House Ethics Committee, if memory serves, what do you think is going to happen?

CHARLIE DENT, CNN POLITICAL COMMENTATOR: Well, the Committee is going to have to take this up at some point. Now we're going to go into the next Congress, I suspect they will. We don't know who's going to be on the Committee. By the way, Kevin McCarthy, assuming he becomes speaker, he will appoint all the Republican members.

And then Hakeem Jeffries would then appoint Democratic members and the Committee is five-five.

TAPPER: Right.

DENT: So neither side can jam the other side, so you have to get to a consensus.

Now, if I had to predict, I doubt that they get to it through consensus. It appears they're going to be investigating failure to comply with a subpoena, but maybe like in the case of Scott Perry, one could argue maybe they're looking at was there an improper use of official resources as part of his duties in Congress and during this - well, his dealings with Jeffrey Clark, for example.

TAPPER: But when you say that there needs to be consensus, what does that mean? There doesn't need to be unanimity.

DENT: No, you need - but you need a majority, it will have to be a bipartisan vote. In other words, it have to be at least six-four, there are five Republicans, five Democrats. If they're deadlocked with five-five, nothing happens. So there will at least have to be some level of bipartisan cooperation to sanction anyone, if that's what, in fact, they choose to do, if they choose to sanction.

TAPPER: And so you're saying Kevin McCarthy, assuming he becomes the next speaker, which is not determined yet, but ...

DENT: Right.

TAPPER: ... likely, he would have to put one of the five Republicans on the Committee who needs to be somebody who's willing to ...

DENT: He would appoint all five Republican members.

TAPPER: Right.

DENT: Yes.

TAPPER: But I'm just saying at one of them, in order for there to be a majority, one of those five Republicans that Kevin McCarthy appoints needs to be willing to go against Kevin McCarthy.

DENT: That would be the case.

TAPPER: Because he's one of the four referrals.

DENT: Sure. And then the other issue, too, that we sometimes don't always think about on the Ethics Committee, you're not dealing with matters of criminality, you're dealing with violations of House rules. And there are only four sanctions available to the Ethics Committee. Expulsion, that's the most serious and there have been five expulsions in the history of the House to my memory, three during the Civil War for treason, Ozzie Myers of Philadelphia, and then James Traficant. Those are the five who've been expelled.

Then there is a censure, a reprimand and a letter of reproval. That's all that can be done. Now, they can't deal with anybody criminally. Now they can always make a criminal referral if they saw - if they thought it was criminal wrongdoing with the Justice Department, but they're just dealing with violations of House rules.

TAPPER: Like former Congressman Ozzie Myers who is in jail again, by the way.

DENT: I know.

TAPPER: David?

DAVID LAUFMAN, FORMER JUSTICE DEPT. COUNTERINTELLIGENCE SECTION CHIEF: These are going to be the most sensitive matters, referred to the Committee on Ethics since the Newt Gingrich case that was before the Committee when I served as an investigative counsel. And there, remarkably, Republicans crossed over to approve the appointment of a special counsel, Jim Cole (ph), who went on to conduct a very robust investigation that led to sanctions against the Speaker of the House, an ignominy for the speaker.

It's highly doubtful in the House majority governed by Kevin McCarthy that he's going to allow anybody to get off the train and support action against himself and other Republican members.

DENT: But just remember one thing though, if you're on that committee, you're really not permitted to speak to any member, including the speaker or the minority leader about anything the committee is doing.


TAPPER: It doesn't mean you don't know where your bread is buttered though.

DENT: Yes.

TAPPER: Coming up next, with Trump now facing these criminal referrals, we're learning that his advisers are giving him a stark warning. We'll have details on that after the break. Stay with us.



TAPPER: The January 6 Select House Committee wrapping up it's nearly a year and a half long investigation with the momentous announcement that the Committee is making criminal referrals to the Justice Department of Donald Trump. The Justice Department now, of course, must decide whether they want to prosecute Trump for any of the four charges recommended by the panel or possibly other ones.

Let's bring in CNN THIS MORNING Anchor, Kaitlan Collins. Kaitlan, you've been working your sources in Trump World from when you were our White House correspondent during the Trump years. What are they telling you?

KAITLAN COLLINS, CNN CHIEF WHITE HOUSE CORRESPONDENT: Well, Jake, what stood out to me about that, that hearing is what we heard from Hope Hicks, of course, one of Trump's closest advisors saying that she had been concerned about two years ago, that if he did not move on from his false claims about the 2020 election, that it was going to damage his legacy.

And, Jake, it's notable that two years later, those are still concerns that are present in Trump's inner circle of advisers. And actually in recent days, he has been advised by people who are concerned about what his 2024 campaign is going to look like, that he has to move on from what happened in 2020. And that his third presidential run, they believe, cannot be successful it's - if it's going to be centered around his election grievances. And they have been urging him to adopt a new message to focus on that if he wants to be successful in the Republican primary that, of course, we are now approaching and seeing others potentially getting into the field in the next several months or so.

But I don't think that warning is being heeded based on what I've heard from these people. They also don't believe that the warning is being heeded by Trump. Instead he has said he doesn't believe anyone should challenge him in the Republican primary, essentially that he should be the only Republican to run and to be the Republican nominee for president. But there are real concerns still inside his inner circle that if he does not change his message and change that message soon, he is not going to be successful in this third presidential run, Jake.


TAPPER: All right. Kaitlan Collins, thanks so much for that. Let's talk now with one of the members of the House Select Committee on January 6, the Chairwoman of the House Administration Committee, Zoe Lofgren of California. Congresswoman, thank you so much for being with us.

So, the Committee said that it is referring Donald Trump attorney, John Eastman, "and others" for possible prosecution, who are the others?

REP. ZOE LOFGREN (D-CA): Well, we mentioned several others in the report, but we also noted that there are some individuals that we can't really collect the evidence on because they wouldn't talk to us. The Department of Justice has a lot more tools than we have for getting information about some of those individuals.

For example, Mr. Meadows, we have a lot of damning information about him from his tweets. He refused to come in to talk to us. I believe that the DOJ will have a much better chance of getting information out of Mr. Meadows than we did.

TAPPER: So Meadows, some of the others who have refused to cooperate, Michael Flynn, Roger Stone ...


TAPPER: ... Dan Scavino.

LOFGREN: Right, Jeffrey Clark.

TAPPER: Jeffrey Clark.

LOFGREN: And Jeffrey Clark.


LOFGREN: But what we said is here's what we have. We think there's evidence to refer this to DOJ, but they've got to do the prosecution. That's not a legislative function.


JAMIE GANGEL, CNN SPECIAL CORRESPONDENT: Could you just talk a little bit about the process now? Justice has wanted these transcripts for a long time, the Committee held them back. Why did you hold them back? How quickly will they get them?

LOFGREN: Well, we've actually given some transcripts already ...

GANGEL: Okay. LOFGREN: ... to the Department of Justice and have for the - during the last month. We will be releasing transcripts starting Wednesday. Because of the great volume of material, just the logistics of getting it all out will mean it's not all going to be on one day. But for example, some of the transcripts relative to our concerns about a witness tampering will be out on Wednesday and people can make their own judgments.

PAMELA BROWN, CNN SENIOR WASHINGTON CORRESPONDENT: All right. I've got two quick questions, one is given the fact that the Committee is referring these charges on Donald Trump to DOJ including insurrection, do you believe that he committed treason as the president of the United States? And my second question is about witness tampering, what more can you tell us about who messaged Cassidy Hutchinson before she testified saying do the right thing and Donald Trump also trying to influence witnesses?

LOFGREN: Well, I'll let you read the whole transcript. But it's clear that she was told that the president was looking at the transcripts. She was offered employment if she was on the team. She was advised to say that she didn't recall something when she did.

So that's pretty serious stuff and ...

BROWN: Can you tell us who was the one ...

LOFGREN: We'll see that on Wednesday.

BROWN: Okay, (inaudible) follow up that.

LOFGREN: You've got to ask, but it's a very wide ranging plot. When I read it, frankly, my jaw dropped. I mean, I was astonished at what I read. And certainly, if you look at her other testimony, prior to firing her lawyer, you can see it confirms everything that she said in terms of how that was transmitted.

But we know the Department of Justice has all of that information and now they'll have this additional piece, but I don't think it's adding anything to what they already have one.

BROWN: About the treason ...

AUDIE CORNISH, CNN HOST, THE ASSIGNMENT WITH AUDIE CORNISH PODCAST: I want to ask about the legislative role to this. Is there anything legislatively that's a fix or have you essentially hit a wall because of the change in hands in Congress?

LOFGREN: No, we have a number of ...

CORNISH: Other than Electoral College Act, right?

LOFGREN: Yes. We have a number of recommendations that will also be released with the full report on Wednesday, talking about the need to review the Insurrection Act, as you know that was repeatedly threatened, it played a role potentially and how the Pentagon responded on the day. We do believe that we need to take a look at the role media played in inciting this whole level of violence, the Electoral Count Act, which is important.

A way to enforce the 14th Amendment, really, it's silent right now on how do you enforce it and Congress has never dealt with that and several other things. So whether the next Congress will pay attention to that, I don't know. I'm pretty confident that some of the fixes in ECA not everything we wanted in the Electoral Count Act, but at least some of them will be included in the omnibus bill that's being put together right now.

TAPPER: Many of the witnesses who testified before your committee had their legal fees paid for by individuals close to the ...

LOFGREN: Correct.

TAPPER: ... close to the former President Donald Trump.


I'm wondering how much you think their participation was specifically hampered, I'm not talking about witness tampering as a crime, I'm talking about a more subtle kind of and legal potentially ...


TAPPER: ... of witness tampering, whereas individuals have their legal representation paid for by Donald Trump and people close to Donald Trump and therefore they're just instructed to not cooperate as ...


TAPPER: ... or do - to do the bare minimum.

LOFGREN: Right. Well, I'll tell you, when you see not just the transcripts, we're going to release the videos of the interviews as well. There were some interviews where we would ask a question and the person purported not to recall, it just seemed hard to believe.

You wouldn't remember having a conversation with the president of the United States about January 6th and those - many of those individuals are represented by counsel, paid for by - as Hutchinson said, Trump World. Does that mean I could prove they lied? No. But she was counseled not to tell the truth and it just seems some of this testimony seemed quite unbelievable.

TAPPER: All right. Zoe Lofgren, congresswoman and the chairwoman of the House Administration, thank you so much. We really appreciate it.

LOFGREN: Thank you.

TAPPER: Joining us here ahead we're going to talk to a former Deputy Attorney General in the Trump administration about these criminal referrals against Donald Trump and what might happen next. Rod Rosenstein is standing by, stay with us.



ERIN BURNETT, CNN HOST: January 6 investigation taking an unprecedented turn today with criminal referrals against the former President Donald Trump. The House Select Committee essentially handing off to the Justice Department at its final public meeting.

I want to bring in now our Senior Justice Correspondent, Evan Perez.

So Evan, they have laid this out. We have had the 11th and final hearing. What are you now learning about the likelihood that prosecutors of the DOJ will pursue what may be the most serious proposed charge from the Committee against Trump?

EVAN PEREZ, CNN SENIOR JUSTICE CORRESPONDENT: Yes. The fourth charge that was listed on this executive summary that was released today talks about insurrection. It's a Civil War era law that has been rarely enforced in the United States. And for the Justice Department, it is something that they looked at as they began these investigations nearly two years ago into the Capitol attack.

They have yet to use it to prosecute anyone for violating this law, Erin. And I'm told that one of the reasons is because there's so little case law for them to rely on. And there's a concern about whether this would be a successful prosecution, so it's one of the reasons, but there are hundreds and hundreds of people, of course, who have been charged with crimes related to January 6, none has been charged with this.

And so that's going to be one that I think is going to be very, very challenging for the Justice Department, again, relying and looking at what the Committee turns over as far as their evidence. Just the letter - just reading the letter of the law that as it reads there really is something that I think they're going to have trouble with.

BURNETT: All right. Evan, thank you very much. And joining me now, the former Deputy U.S. Attorney General, Rod Rosenstein.

So Rod, you've had a chance to read through this. What do you take away, obviously, Evan laying out the - what's at stake with all of the charges, but in particular, that fourth and most serious, which is aiding or assisting an insurrection itself?

ROD ROSENSTEIN, FORMER TRUMP DEPUTY ATTORNEY GENERAL: No, I think Evan is right about that. The key here, if you were to prosecute the president on this charge would be his First Amendment defense. Ironically, he would claim a First Amendment right to engage in political speech, which is what he was doing at that rally.

Now, the Department of Justice would have to prove that the president's comments were directed at inciting imminent lawless action. In other words, they'd actually have to prove that he intended for a mob to engage in violent activity and that would be a hurdle prosecuting under that charge.

BURNETT: Okay. So putting aside whether there'll be influenced, from what you obviously heard in the 10 hearings and from what you've now read in this document that they have put out, did the Committee reach that bar? Did they make the case for these charges?

ROSENSTEIN: Well, the Committee's referral obviously reflects the opinion of the members of Congress, but it's not the product of an adversary process. There's no opportunity for the defense to say their piece. If the Department of Justice were to go forward in a case like this, they need to consider what the defense case would be, what evidence would Trump present if the evidence were presented against him, and the department would need to balance those factors before it made a decision whether to go forward.

BURNETT: So when you look at the four charges, obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement regarding the fake elector slates and, of course, inciting an insurrection itself, in addition to the other two including seditious conspiracy that they think they may have, they say. Do - where do you think they are in terms of having met the bar on any of those?

ROSENSTEIN: Well, I think this document serves the primary purpose of educating the public and the media about the evidence. The Department of Justice, obviously, is conducting its own independent investigation and they're really unlikely to be influenced by the opinion of members of Congress.