Special Counsel Jack Smith was appointed by Joe Biden late last year to lead two separate investigations into President Donald J. Trump. Each one of the four indictments to which President Donald Trump has been subjected – Jack Smith’s two federal indictments in addition to the state level indictments from District Attorneys Alvin Bragg of New York and Fani Willis of Georgia – are based on legal theories that were cobbled together from the findings of the January 6th Committee. The Committee’s findings helped tailor the specific legal arguments and recommendations featured in the “model prosecution memorandum,” spearheaded by Norman Eisen of the Brookings Institution, who previously served on the House Judiciary Committee where he oversaw the “impeachment and trial of President Trump.” Jack Smith’s indictments, as well as the indictments of Fani Willis and arguably even Alvin Bragg, albeit to a lesser extent, are deeply indebted to the legal theories in Norm Eisen’s memorandum, which were based on the January 6th Committee’s fabricated narrative.
There are substantial reasons for questioning the integrity of the Committee. One can begin with the highly partisan composition of the Committee itself (the only two Republican members, Rep. Liz Cheney (WY), and Rep. Adam Kinzinger (IL), both vocally opposed Donald Trump for years, and voted to certify the 2020 election results). None of the 147 members of Congress who objected to the ratification of the 2020 presidential election results appeared on the Committee, a list that included, among others, such notable members as current Chair of the House Judiciary Committee Jim Jordan; current U.S. Senate Committee on the Judiciary members Ted Cruz and Josh Hawley; and current House Speaker Kevin McCarthy, who, in his words, “agreed with objections that were made to two states, especially because constitutional questions have been raised about changes to election processes and whether these changes were approved by their respective legislatures, as required in Article II. The debate and votes were not about overturning an election or federalizing elections.”
In short, the January 6th Committee was deeply flawed, not only in composition, but regarding the plainly erroneous evidence it collected and relied upon to make dangerously far-reaching and reckless accusations about those who participated. This erroneous evidence, in turn, was used to recommend sweeping criminal charges against a class of overwhelmingly peaceful demonstrators, many of whom did not even breach the Capitol, or for that matter, show up on Capitol grounds on the day of January 6th.
The Washington Post called Eisen, who was a diplomat in the Obama administration, a “critical force in building the case for impeachment” – indeed, some would say the mastermind behind the legal theories that would later merge in the indictments of both Fulton County D.A. Fani Willis of GA and Special Counsel Jack Smith. Eisen works for the Brookings Institution, a nonprofit public policy organization headquartered in D.C. that put together the discredited Steele dossier. It is thus no surprise that Eisen, who helped craft the predominant legal narrative for the government’s case for the events of January 6th, would later write op-eds for the New York Times supporting the logic of the Willis indictment, which relied heavily on his own memorandum’s legal theories.
Eisen’s 264-page memorandum – which he co-authored with Noah Bookbinder, Donald Ayer, Joshua Stanton, E. Danya Perry, Debra Perlin, Kayvan Farchadi, and Jason Powell – portrays the events of January 6th as a conspiracy between Trump and his lawyers to maintain power despite having lost the 2020 presidential election, which Eisen and his co-authors describe as an “indisputable fact.” Eisen also claims that there was “overwhelming proof that [Trump] knew he lost and repeatedly admitted it.” But these assertions do not comport with reality.