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Members of the nine-month-old House Select Committee to Investigate the January 6th Attack on the United States Capitol have recently said they believe there is strong evidence that then-President Donald Trump broke the law during his efforts to overturn the results of the 2020 election.
“It’s absolutely clear that what President Trump was doing — what a number of people around him were doing — that they knew it was unlawful,” committee Vice Chair Liz Cheney, R-Wyo., . In late March, a federal judge wrote that it was that Trump had committed federal crimes in a ruling concerning a trove of sensitive emails the former president’s lawyer had attempted to prevent the committee from obtaining.
But Congress can’t prosecute crimes itself; only the Department of Justice has that power. The most the committee can do is issue a criminal referral, which would essentially serve as a recommendation that the Justice Department pursue charges against Trump. Despite their confidence that the former president did commit one or more crimes, multiple suggest that the committee members are divided on whether to make a criminal referral once their investigation is complete.
Cheney pushed back on the idea that there is a “dispute” within the committee on the issue but did say that she and her colleagues have “not made a decision” about whether to refer Trump to the DOJ.
The Justice Department is already conducting a sprawling investigation into the insurrection and the events surrounding it. It’s unclear how much, if at all, that inquiry involves potential criminality by the former president. Trump, of course, denies any wrongdoing.
Why there’s debate
The debate centers around the question of whether a criminal referral would advance, or possibly undermine, the committee’s goal of holding Trump accountable for his role in the insurrection and his effort to subvert the democratic process.
Skeptics argue that the referral would be a largely symbolic gesture with no real impact, since the DOJ is free to simply ignore it or charge Trump on his own without the referral. “It has no legal weight whatsoever,” committee member Rep. Zoe Lofgren, D-Calif., told Politico earlier this month. There are also concerns that a referral might backfire, by giving fuel to Republicans who want to paint Attorney General Merrick Garland as bowing to political pressure if he does eventually choose to prosecute Trump.
But others say the committee has a duty to take every possible step available to them if they believe that Trump poses a clear threat to U.S. democracy. “I think it’s a lot more important to do what’s right than it is to worry about the political ramifications,” Rep. Elaine Luria, D-Va., who is also on the committee, . Some Democrats also worry failing to send a referral despite strong evidence of criminal conduct might be read by the media and public as an exoneration for Trump.
It’s unknown when the committee will issue its final report, but there is a sense of urgency for members to complete their work. If Republicans take back the House after the November midterm elections, as many experts predict they will, the new GOP leadership would almost certainly disband the committee or dramatically change its composition.
The committee members must do everything in their power to hold Trump accountable
“Again and again — during Trump’s campaign, his presidency and now his post-presidency — we’ve seen responsible figures determine that something must be done about Trump’s behavior. And then, inevitably, they decide to let someone else do it. They’ve rationalized their timidity as political prudence, but the result has been a pandemic of buck-passing.” — Charlie Sykes,
A referral would make the DOJ’s decisions appear tainted by partisanship
“A formal criminal referral from Congress in this situation could backfire. The Justice Department’s charging decisions should not be influenced by political pressure, and that’s how this might look. A referral could make it harder for the Department to prosecute.” — Ronald Weich, criminal law expert, to
There will be a political firestorm, regardless of what the committee chooses to do
“The reality is that any move that the DOJ makes regarding Trump — be it an investigation, a prosecution, or a decision not to prosecute — will be a highly politicized one, no matter how much people like Attorney General Merrick Garland try to avoid it.” — Editorial,
The committee was created for political purposes, not for finding the truth
The Justice Department shouldn’t wait for the committee’s decision
“Filing charges after Republican victories in the midterms could give the appearance of a desperate effort to slow down the GOP’s political momentum. If the goal is to avoid making the department seem political, waiting for Congress and the midterms is no way to go about it.” — Jennifer Rubin,
Declining to issue a referral would minimize the severity of the attack on our democracy
“We must remember that, whatever damage the rioters inflicted on the Capitol and the people working in it, the real victim was the Constitution. They sought to leave it in tatters, and if this heinous act is minimized, we will feel the impact for decades.” — Editorial,
A referral might be the push the DOJ needs to take investigating Trump seriously
“A referral is just a recommendation, the Justice Department is under no obligation to follow it, and it might have little practical impact. But for those of the school of thought that [Attorney General Merrick] Garland needs more public pressure to take a Trump case seriously, this could help achieve that.” — Andrew Prokop,
The committee should focus its efforts on informing the public about what happened
“A congressional investigation isn’t a second-best version of a law enforcement probe, but something different, with its own advantages and drawbacks. … The select committee is uniquely positioned to speak to the public in a way that law enforcement isn’t. If congressional investigators hope to tell Americans the full story of Jan. 6, that’s work that only they can do.” — Quinta Jurecic and Molly E. Reynolds,
Ultimately the committee’s decision will be largely irrelevant
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