Rep. Adam Schiff on potential criminal conspiracy charges against former President Trump

Judy Woodruff:

It's the clearest picture to date about the scope and potential conclusions of the House committee investigating the January 6 attack on the U.S. Capitol.

In a 221-page court filing, lawyers for the committee write that there is evidence to conclude former President Donald Trump and members of his campaign — quote — "engaged in a criminal conspiracy to defraud the United States as they sought to overturn the 2020 election results."

Mr. Trump responded today, saying the committee is — quote — "destroying democracy as we know it."

For more on the committee's work, I'm joined by Democratic Congressman Adam Schiff of California. He is a member of the January 6 Committee and he also chairs the House Intelligence Committee.

Judy Woodruff:

Congressman Schiff, thank you very much for joining us.

We know the January 6 Committee, the mission is not to conduct a criminal investigation, but is — are you now closer to finding President Trump guilty of a criminal activity?

Rep. Adam Schiff (D-CA):

Well, as you say, it is not our role to prosecute or determine guilt or innocence.

But we are in litigation right now to try to get records from some claiming to be an attorney representing the president. And the judge asked us to brief him on whether the crime-fraud exception applies. And we believe it does.

That is, if an attorney is helping a client commit a crime, their communications are not protected. And, here, any number of act by the president and his campaign potentially violate statutes which prohibit the corrupt interference with an official proceeding. And, of course, that joint session of Congress was an official proceeding.

And given the president was repeatedly advised that the vice president had no authority to decertify electors, that there was no basis to these bogus claims of fraud, we believe that there was that kind of a corrupt intent to interfere with the joint session.

But, also, the promulgation of those false claims, we believe, is part of a conspiracy to defraud. And we presented that evidence to the court.

Judy Woodruff:

And in that evidence that you presented, we mentioned 221 pages in this filing. There are transcripts of e-mail exchanges between the lawyer who was advising former President Trump — his name is John Eastman — and a lawyer who was working for then-Vice President Mike Pence.

What is it about those exchanges that you, that the committee believes point to something that should be investigated?

Rep. Adam Schiff:

Well, I think evidence of the corrupt intent is very important.

That is that the president was informed by multiple people multiple times, that there was no lawful basis to do what he was trying to do. We saw in some of the interviews recently with even Bill Barr that Bill Barr told the president that these claims were B.S.

And so we think that evidence in these e-mail exchanges, as well as other evidence indicates that the president understood he had no lawful basis to do what he was doing. And, therefore, it violated U.S. law, but also was fraudulent. And that's the relevance of that evidence.

Judy Woodruff:

I'm still trying to understand and I want our audience to understand, again, the January 6 Committee is not engaged — this is not a criminal investigation.

But it's very much about referring, mentioning in this filing, and then seeing that the — that any criminal investigation that does take place has access to all the information that your committee is coming across in your work.

Rep. Adam Schiff:

Well, I would put it this way.

The Justice Department has the obligation to determine if a crime is committed and whether anyone, including the former president, should be prosecuted. That's the department's job. They're not waiting for us to make a referral. That's not what the Justice Department does.

Now, we may make a referral at the end of our investigation. But the Justice Department should be proceeding on its own. If there's credible evidence that the president or anyone else has committed a crime, they should be investigating it. And they shouldn't be waiting for us to do a report. They shouldn't be waiting for us to do that work.

But they should be doing it on their own. Nevertheless, there are circumstances like this court filing where the issue of crime or fraud is relevant. And so we have addressed it. And, at the end of the investigation, we may choose to make a criminal referral.

Judy Woodruff:

And for all you know, Congressman Schiff, the Justice Department may well be investigating this; is that right?

Rep. Adam Schiff:

You know, it's possible, Judy, but, generally, when you convene a grand jury in a case like this, in which the witnesses before the grand jury are not bound to silence, the public finds out about it.

And so, even though the department doesn't talk about it, the public becomes aware of it. We don't see anything like that happening regarding certain key things. I would point to, for example, the president on the phone with the secretary of state in Georgia trying to get the secretary to find 11,780 votes that don't exist.

That's a recorded conversation. There's no sign of a grand jury, federal grand jury in Atlanta, only a local district attorney's office investigation. I don't understand why that's the case. So, that does concern me.

Judy Woodruff:

And — but talking about it openly, as you are, do you think can influence course of events?

Rep. Adam Schiff:

I don't know.

But I do think that there are probably many people within the Justice Department who are concerned. If we are to maintain the position that the rule of law applies equally to everyone, then we really need to follow through with that. And I think, Judy, if any of your viewers were on the phone with a top state official trying to get them to effectively stuff the ballot box, they would be under investigation.

And I feel duty bound to be open about that. I spent almost six years with that department. I venerate it. And I think we need to uphold that idea that no one is above the law, including former presidents.

Judy Woodruff:

I want to come back to the filing that the committee made late last night to this lawsuit by former President Trump, essentially saying that he, Mr. Eastman, because of executive privilege, they don't have to cooperate here.

What if the judge in that case rules in their favor? Does that affect the work — the point that the committee's making, the work the committee is trying to do?

Rep. Adam Schiff:

Well, it would affect it in the sense potentially that we might not get access to these records.

Now, there are a number of arguments that we have made in the court pleading. We don't think, first of all, that Eastman has established he was a lawyer for the president. Just because he's a lawyer doesn't make him the president's lawyer. So his privilege claim should fall on that basis.

It should fall on the crime-fraud exception basis. It should fall on the basis that he's talked publicly about these things with Donald Trump's permission, and, therefore, any privilege would be waived. So there are multiple bases the judge could find the privilege was not applicable here.

Finally, I would say, if the judge were to rule against us on the crime-fraud exception, that doesn't mean the president or his people haven't committed a crime or a fraud. It simply means that, on the basis of these narrow set of documents, there wasn't evidence sufficient for the court to make that finding.

But, of course, we have a much broader body of evidence in our investigation that would be pertinent to that particular issue.

Judy Woodruff:

Congressman Adam Schiff, who is a member of the January 6 Committee and who chairs the House Intelligence Committee, thank you very much. We appreciate it.

Rep. Adam Schiff:

Thank you.