January 6 Committee: Grandstanding from start to finish

The House Select January 6 Committee ended this week as it began 18 months ago — subordinating a critical congressional-oversight function to partisan politics. In yet another instance of the committee’s signature grandstanding, it capped its public presentation on Monday by making criminal referrals of former president Donald Trump to the Justice Department.

It was at best an empty political gesture. The referrals, carrying no force of law, are nonbinding. The Justice Department, which has already appointed Special Counsel Jack Smith to investigate Trump in connection with the Capitol riot (as well as his retention of classified intelligence at Mar-a-Lago), will make its own assessment of whether a prosecution is warranted. In the unlikely event that the committee has uncovered evidence or witnesses unknown to prosecutors, communicating that information would, of course, be helpful. Clearly, the committee did valuable work in shoring up the proof that Trump was fully and convincingly informed that he had lost the election even as he pretended otherwise, and that his surrogates lacked evidence of material election fraud even as they peddled the “stolen election” storyline. That these facts were already generally known does not undercut the committee’s important supplementary evidence. Nevertheless, with his superior criminal-law experience, institutional competence, and investigative resources, Smith did not need a recommendation on whether an indictment should be sought from an anti-Trump congressional panel. By making the referrals, the committee has enabled Trump, if he is ultimately charged, to argue that the decision was driven by politics, not evidence.

From its inception, the January 6 committee has been a missed opportunity. The Capitol riot is a blight. It deserved a credible, bipartisan investigation that would end in a comprehensive report, exploring all aspects of the riot — from Trump’s role in stoking the mayhem to the security failures that allowed a raucous political gathering to breach the Capitol.

Instead, House Democratic leadership undermined the investigation even before it began through what Speaker Nancy Pelosi admitted was her “unprecedented” decision to deny Republican leadership the prerogative to select the members who would fill the minority seats. Pelosi imperiously hand-picked the whole committee, adding two intensely anti-Trump Republicans, Liz Cheney and Adam Kinzinger — a veneer of bipartisanship that could not conceal GOP objections to the panel’s composition and direction. Moreover, the Democrats’ rationale for refusing to seat pro-Trump Republicans Jim Jordan and Jim Banks — namely, that they were allegedly too biased and enmeshed in Trump’s “stop the steal” antics — proved laughable when Pelosi filled out the committee with rabidly anti-Trumper Democrats, some of whom (including Chairman Bennie Thompson) had their own history of baseless election denial. As a result, the committee lacks legitimacy in much of the country’s eyes, including those of Americans who carry no brief for Trump and would have supported a credible probe.

The committee pursued only one issue: the unfitness of Donald Trump to be president. That conclusion should already have been apparent, not least from the fact that the House impeached Trump — for a second time — after the riot, and the Senate voted 57–43 to convict (falling short of the required two-thirds supermajority). That exclusive focus signaled that Democrats’ priority was the politics of the 2022 and 2024 election cycles, not a full and fair accounting of the riot.

While the basis for Trump’s impeachment was clear, criminal prosecution is a different matter. An indictment of a former American president who has declared his candidacy for the next presidential election would have legitimacy issues for about half the country. It should not happen unless the Biden Justice Department’s special counsel can convince the country that there is compelling evidence of serious crimes and, thus, that a prosecution is in the public interest even though it entails yet another intrusion by law enforcement into electoral politics. It would be difficult to imagine something less in the public interest than a weak case, reliant on novel legal theories and extravagant factual inferences, that appears to have been brought due to partisan rather than legal considerations.

Yet that is what the committee is advancing. It referred four potential charges to the Justice Department. One of them, which portrays Trump as inciting insurrection, runs counter to the Justice Department’s prosecutorial theories in connection with upwards of 800 Capitol riot defendants charged over the last two years. Despite its promises, the committee did not establish a criminally actionable (as opposed to impeachable) connection between Trump and the violence. The weakness of the argument for such a connection is plainly why, in its many January 6 cases, the Justice Department has refrained from even alleging that Trump is an unindicted co-conspirator.

Without proof of actionable complicity in the violence, the committee’s other three referrals appear weak. The claims that Trump and others conspired to obstruct Congress and defraud the United States are based not on the riot but on their use of constitutional-law attorney John Eastman’s flawed legal theory that Vice President Pence had authority to refuse to count electoral votes. Frivolous legal theories are rightly derided, but have never been criminalized. Establishing such a precedent would degrade the rights of all Americans to express opinions, even outlandish ones, and to posit legal claims, including in mounting a defense if charged with a crime. The committee’s final referral frames the Trump campaign’s arrangement of “fake electors” as indictable false statements. But these alternative slates of Trump electors in key states won by Biden maintain that they were merely contingent in the event Trump’s lawyers somehow convinced state courts or legislatures to invalidate the popular vote. That never happened, and there is thus far no proof that these slates falsely claimed to be state-certified (it was quite obvious that they were not).

The January 6 committee could have performed a valuable service by simply issuing its much-anticipated report along with the full, unedited transcripts of witness testimony and exhibits, so the public could judge how faithful its television presentations were to the evidence. There would have been no need to make referrals; the report would suffice. Now, if the special counsel does decide to charge a January 6 crime, Trump will be able to counter that the prosecution is a political vendetta; i.e., that the Biden Justice Department took no action against Trump until after he announced his 2024 candidacy, at which point a high-profile, blatantly partisan, Democrat-controlled committee called for Trump’s indictment.

If the January 6 committee wanted Trump to be prosecuted, it shouldn’t have made the prosecutor’s job harder.

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