- makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry."
According to the Department of Justice, whether a false statement is criminal under section 1001 “depends on whether there is an affirmative response to each of the following questions:
- Was the act or statement material?
- Was the act within the jurisdiction of a department or agency of the United States?
- Was the act done knowingly and willfully?"[625]
In addition, and as explained above, 18 U.S.C. § 371 makes it a crime to conspire to "commit any offense against the United States."[626]
The evidence suggests President Trump conspired with others to submit slates of fake electors to Congress and the National Archives. Sufficient evidence exists of a violation of 18 U.S.C. §§ 371 and 1001 for a criminal referral of President Trump and others.
As explained earlier and in Chapter 3 of this Report, the certifications signed by Trump electors in multiple States were patently false. Vice President Biden won each of those States, and the relevant State authorities had so certified. It can hardly be disputed that the false slates of electors were material, as nothing can be more material to the joint session of Congress to certify the election than the question of which candidate won which States. Indeed, evidence obtained by the Committee suggests that those attempting to submit certain of the electoral votes regarded the need to provide that material to Vice President Pence as urgent.[627]
There should be no question that section 1001 applies here. The false electoral slates were provided both to the executive branch (the National Archives) and the legislative branch.[628] The statute applies to "any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.[629] It is well established that false statements to Congress can constitute violations of section 1001.[630]
Finally, the false statement was made knowingly and willfully. There is some evidence suggesting that some signatories of the fake certificates believed that the certificates were contingent, to be used only in the event that President Trump prevailed in litigation challenging the election results in their States. That may be relevant to the question whether those electors knowingly and willfully signed a false statement at the time they signed the certificates. But it is of no moment to President Trump's conduct, as President Trump (including acting through co-conspirators such as John Eastman and Kenneth Chesebro) relied on the existence of those fake electors as a basis for asserting that the Vice President could reject or delay certification of the Biden electors. In fact, as explained earlier and in Chapter 5 of
