Last week’s January 6th Committee hearing, its final one, was certainly historic. Never before has a House Committee referred criminal charges against a former President to the Department of Justice for potential prosecution. Yesterday, it did just that, referring Donald Trump, attorney John Eastman and possibly others for obstruction of an official proceeding, the central moment of the peaceful transition of power following the 2020 election. Other charges involve multiple conspiracies to defraud the U.S., knowingly and willfully making false statements (replacing legal electors with phony ones) and, most significantly perhaps, inciting or giving aid and comfort to those engaging in insurrection.
Could anything be a a more heinous betrayal of the U.S. Constitution than this? And yet, the final hearing – two days before the Committee’s final report is to be turned over to the DOJ – seemed somewhat anticlimactic. The Committee held nine public hearings and took public testimony from 70 individuals, mostly Republicans. (I confess to watching all the hearings.) They built a rock-solid case that the former President disseminated fraudulent claims of election cheating, and, when more than 60 courts rejected his lawsuits, he set about other ways to overturn election results. You know the litany: pressuring local election officials to change the vote counts, pressuring Justice Department officials to declare the outcome illegitimate, trying to replace those officials when they refused to do his bidding, fabricating slates of fake electors, leaning on members of Congress to support substitute electors, pressuring Vice President Pence to reject the duly designated electors, attacking him for not doing so, and, failing all that, summoned a mob to Washington and bade them to march on the Capitol, all the while tweeting incendiary comments to his supporters to galvanize violent extremists.
Many rational insiders with access to the President had begged him to cease what he was doing before the insurrection and, on January 6, urged him to tell the rioters to stand down when all hell had broken loose. For more than three hours, he refused to do so. Nor did he call in desperately needed law enforcement reinforcements. Blood was shed, five people died during and immediately after the insurrection, and the extremists nearly brought about the downfall of a hallmark of our democracy, the orderly transition of power.
900 of them have been charged. 500 have either plead guilty or been convicted. Many are in jail today, some for many years. Some confess that they had bought into Trump’s stolen election lies and were taking action at his behest. Trump’s response is that they did no wrong, and he has promised to pardon them if he is reelected to a second term in 2024.
Let’s face it. The decision to refer criminal charges to the Justice Department is largely symbolic. Congress has done a commendable job detailing the insurrection and educating the public, but it has no power to prosecute. The criminal referral means less to DOJ than the thousands of pages (some 2000 witness interviews and other records gathered) in more than a year of the Committee’s work.
Critics charge the referrals are political grandstanding. My sense is that, while they are not grandstanding, they are political. This is not a pejorative. Legitimate investigations, hearings and reports are a key function of the body politic. The result has been a masterfully produced, one-sided, exhaustive and aggressive probe. There is no minority report. But honest critics must acknowledge that Republican leaders blocked creating a balanced 9/11 type independent commission and the House Committee’s including more diverse but not wacko GOP voices.
Now it’s up to whatever the Justice Department determines, under the leadership of special counsel Jack Smith – largely free of the political process – regarding how to proceed with the January 6th case and the matter of Trump’s mishandling of classified documents after leaving the White House. Attorney General Merrick Garland has promised to follow the facts and evidence wherever it leads, no matter how high. Getting a grand jury to indict Trump is the easy part. It only needs a showing of probable cause. To go to trial successfully requires having proof “beyond a reasonable doubt.” To win a conviction, prosecutors must prove each element of every crime charged.
The Committee also indicated it is referring four members of Congress to the House Ethics Committee for their failure to respond to subpoenas. One was likely-incoming Speaker Kevin McCarthy, so you know how far that is going to go. Another was Jim Jordan, who, according to the Committee, was on a conference call with President Trump and others trying to figure out how to delay the January 6th electoral vote count. Jordan is expected to chair the Judiciary Committee, so file this under “DOA” as well.
So, where does this leave us? The Committee did not name names today of all “the others” who are implicated in this conspiracy. But it made one thing very clear: ours must not be a system of justice where the foot-soldiers go to jail, and the masterminds and ringleaders go free. Given the evidence, for the Committee not to have made the criminal referral would have been a dereliction of duty.
Donald Trump has made a career of gaming the system, getting away with wrong-doing. Let’s hope the DOJ gets it right, validating for all that no person – especially Donald Trump – is above the law.