Column: The January 6 committee should call Trump’s crime a crime

There is no doubt that the January 6 House Select Committee believes it has gathered enough evidence to prove Donald Trump’s federal crimes related to the effort to derail President Biden’s 2020 victory at the polls. But committee members are divided on whether to take the next step of a criminal referral to the Department of Justice.

The pros and cons are worth discussing, but in the end the committee shouldn’t hesitate. The disadvantage of a postponement is not as compelling as the advantage of making its position clear.

In its simplest form, the debate seems to boil down to this: Will making a postponement increase or decrease the chances of Trump being held accountable? Some think a postponement would put pressure on the Justice Department to indict him; others think it could only annoy the lawyer. Gen. Merrick Garland and make indictment less likely.

It is true, as the opponents of the postponement point out, that if the commission of January 6 makes the request, it will have no legal effect. Congressional committees are investigative bodies, not prosecutors. The decision to file a complaint rests entirely with the Justice Department (perhaps in this case, given the gravity of a court case against a former president, in concert with the White House).

And unlike the group’s January 6 disdain for Congressional referrals (against Stephen K. Bannon, Mark Meadows, Peter Navarro, and Dan Scavino Jr.), the committee isn’t even a victim of the alleged crime. Referring to Trump, the committee will essentially pass on the evidence gathered. Its basic legal analysis is neither required nor material.

But there is also no institutional reason for the commission of January 6 to hide its opinion. To begin with, the members and staff of the committee are rich in the experience and judgment of the prosecution. (Remember the magnificent concluding arguments in the first impeachment of committee member and former assistant to the American attorney Adam B. Schiff?)

And it is a routine part of the government’s working structure for branches to communicate with each other and suggest, from the standpoint of their own interests, what action another branch should take. Judicial opinions, for example, include suggestions for executive or legislative action. To suggest that a criminal deferral by Congress equates to inappropriate weeding in the Justice Department garden is simply wrong.

When it comes to moving the needle with Garland, there’s no reason to celebrate or worry. What we’ve seen since his tenure at Justice only underscores Garland’s reputation as a fiercely independent prosecutor. He has spent most of his legendary career making difficult decisions regardless of political considerations. He proved neither impressionable enough to be moved one way, nor subtle enough to be moved the other.

There are more crucial – and thornier – reasons for and against postponement.

If the commission were to make the postponement and if Garland, in the exercise of his independent judgment, filed a lawsuit against Trump, the Republicans would scream even louder, and with more plausibility, that the accusation was mere partisanship, an effort to rank. of Trump’s political enemies to bring down the former president. In other words, a postponement could undermine the audience’s and story’s perception of the outcome.

However, the plausibility of the GOP partisan case would only increase by a marginal amount. Referral or non-referral, if the Justice Department files a complaint against Trump, Republicans will howl and a part of the country will surely believe it is all political, regardless of the evidence or the outcome.

Indeed, the greatest danger in terms of public perception would come from the decision not to postpone. This could activate what I will call the Mueller effect.

Recall that Special Adviser Robert S. Mueller III, in finalizing his investigation into Russian collusion with the Trump campaign, believed himself bound by a Department of Justice policy not to indict an incumbent president. From there, he took the extra prophylactic step of not doing it Also opinion on Trump’s crime. He would have been unfair, Mueller concluded, to call the president a criminal without his having a chance to clear himself in court.

The result was a confusing mess in the public mind, which Trump exploited at all times, deceptively proclaiming: “No collusion, no obstruction.” A careful reading of the Mueller report contained the opposite conclusion, but without a clear statement of that by Mueller, that analysis was too small, too late. The Trumpian view has caught on with enough voters to be important.

The Committee of January 6 runs the same risk if it throws its punches. Trump could misleadingly proclaim that the committee had not found enough evidence to ask the Justice Department to indict him. And the committee’s lack of a “verdict” could be interpreted to blunt the strength of any determination that the former president was indeed a criminal.

The January 6 committee is a political body, not a legal one. But this does not mean that his conclusions are unimportant or unrelated to the truth, or to the historical verdict. The committee must carry out the logical conclusion of its investigation. The evidence it has gathered and which we have seen so far – not all of it has been made public – details such as a staggering abandonment of presidential power as the nation has seen.

For the January 6 committee to go this far but then evade the obvious by not calling a crime a crime would depreciate its own historical work.

@HarryLitman