JANUARY 6TH SELECT COMMITTEE TO MAKE CRIMINAL REFERRALS
Surprise! Surprise! House Speaker Pelosi’s one-sided Select Committee has let it be known to the media that they are going to make criminal referrals to the Justice Department involving a number of individuals. It was further leaked that one of those individuals would be former President Trump.
That is not shocking. In fact, if the Committee did not send criminal referrals to the Justice Department, THAT would be shocking. That was the plan from day one. The carefully crafted “hearings” were nothing less than a months-long prosecution brief without the benefit of a defense perspective. That is just dishonest regardless of the actions of the accused.
It should be noted that the report from the Committee is the final act in this Kabuki Theatre production by a committee that will cease to exist in less than one month – and GOP apostates Liz Cheney and Adam Kinzinger will return to private life.
To appreciate the situation, it is important to understand that the House is a POLITICAL body – not a law enforcement agency. It cannot indict, try, convict and sentence anyone – although Congress once had a jail to incarcerate those they found in contempt. I doubt that would pass constitutional muster these days.
Congress can only investigate — and if they feel they have uncovered criminal activity, they can only refer their information and opinion to the Department of Justice. It is purely a political action – and in this case, compromised by the political bias of the Select Committee.
The referral does not mean that Attorney General Merrick Garland will act on it. The House uses the referral process to make political points. Many of the referrals die on the desk of the AG. They are never pursued. On the other hand, most of the previous referrals do not have the political implications or the public attention that these referrals will receive.
If Trump is among those referred for a criminal prosecution, that will make the case totally unique in American history. Prosecuting a former President will not be popular. It will divide the country.
Another obstacle to actual indictments from the DOJ is that much of the January 6th Committee information – what they erroneously call evidence – is not admissible in a court-of-law. Making a case in the court-of-public-opinion is political and easy because the accused is denied constitutional rights – most fundamentally, the right of counsel and the right to mount a defense. The right to call and cross-examine witnesses and present countervailing evidence. None of that was present in the so-called “hearings.”
There is also another problem. It will not be easy to find 12 jurors who are willing to convict a former President as a matter of principle. Garland has to weigh heavily the prospect of losing in court. Prosecutors do not indict if they think they will not win in court. A failure could make the accused a political martyr.
In some measure, we saw what happened when Democrats excoriated Trump in the court-of-public opinion with accusations of colluding with Russian meddling in the 2016 election, only to have Special Counsel Robert Mueller report that the political claims and accusations were unequivocally untrue.
Twice Democrats abused the political process of impeachment to put Trump on trial in the Senate. The primary purpose of impeachment is to have a President convicted by the Senate and removed from office. That was not the purpose of the Trump impeachments. The first lacked sufficient foundation, and the second was after he would be out of office – the primary purpose of impeachment. Again, Democrats fell short because there was no chance that Trump would be convicted by the Senate. Just more political chicanery on their part.
Democrats argue that the Senate acquittal was pure politics. But so were the impeachments.
There will be a lot of calls from the political vigilantes in the press to hang the culprits after the Select Committee issues its highly biased prosecutorial brief. I suspect, however, when the DOJ makes its judgments on the various cases, the vigilantes will be disappointed at the level of real legal prosecution … the number and nature of any real indictments … and ultimately, the number of actual indictments and convictions.
In many ways, the Select Committee is a sideshow. All the serious investigation is already being carried out by the DOJ and other local prosecutors. Their investigations are the only ones that count. Furthermore, it is inappropriate to attempt to influence the outcome of an investigation. While Congress can surely send criminal referrals to the DOJ, the Select Committee could be seen as applying undue influence. Garland is likely to want to push back on that perception.
I am speaking specifically of the January 6th case. I have previously opined that Trump could be in more legal trouble with the business cases – and his company has already been convicted of fraud – and the government documents case — where Trump seems to have no legal defense for his taking and retaining the documents.
Individual crimes may have been committed — and some folks may wind up with jail sentences. It is not likely to be as extensive and harsh as Democrats and the left-wing are hoping and clamoring for. The difference is between political propaganda in the court-of-public-opinion and the adjudication of real evidence in a court-of-law.
As a footnote: I would repeat my suggestion that the new GOP Speaker maintain the Select Committee and restaff it. And he should not necessarily accept the Democrats appointed by the new Minority Leader. Image the defense arguments … a different selection of witnesses… tough cross examination … and all that while the DOJ is figuring out what to do with the Pelosi Report. Even Kabuki Theater can be entertaining.