All the President's Crimes
For the first time in American history, Congress refers a US president to the Department of Justice for prosecution.
Final Hearing
On Monday, the House Select Committee investigating the Jan. 6, 2021 attack on the US Capitol unanimously agreed to refer criminal charges against former president Donald Trump to the Justice Department.
This last public hearing concluded the 18-month examination by the bipartisan committee to investigate efforts to overturn the 2020 presidential election, culminating in a violent insurrection at the US Capitol.
Although criminal referrals from the committee hold no legal weight, Congress has never before referred a sitting or former president for prosecution.
The committee recommended that prosecutors pursue four charges against Trump: obstruction of an official proceeding of Congress, conspiracy to defraud the United States, inciting or assisting an insurrection, and conspiracy to make a false statement.
Along with its referrals, the committee also issued a summary of its final report due to be published today.
Evidence presented by the committee during its hearings “has led to an overriding and straight-forward conclusion: the central cause of January 6th was one man, former president Donald Trump,” the committee concludes in its report summary. “None of the events of January 6th would have happened without him.”
The panel also referred John Eastman, a conservative lawyer, and “certain other Trump associates.” The report cites Trump White House Chief of Staff Mark Meadows and lawyers Rudy Giuliani, Jeffrey Clark and Kenneth Chesebro among those who “likely share in Eastman’s culpability.”
Committee member Jamie B. Raskin (D-MD) said the referrals were necessary given “the magnitude of the crime against democracy” while chairman Rep. Bennie G. Thompson (D-MS) said he hopes their work would “provide a roadmap to justice.”
Referrals
According to the Washington Post, while Congress has investigatory and subpoena powers, the legislative body does not have the authority to prosecute anyone. So when Congress wants to charge someone, members make a referral to the Justice Department, essentially calling on the federal law enforcement agency to investigate a matter or prosecute someone.
“A referral really just means that one part of the government is sending to the executive government information and requesting that the Department of Justice investigate these matters,” said Stephen A. Saltzburg, a law professor at George Washington University.
Criminal referrals certainly increase public awareness that the committee believes the former president or members of his inner circle broke the law, but congressional committees do not need to meet the same evidentiary threshold as prosecutors need to bring forth a case.
However, Daniel Richman, a law professor at Columbia University, said the Justice Department would probably take a criminal referral from a congressional committee more seriously than it would referrals from elsewhere.
“One of the purposes of a referral is that if you think there is a crime, it puts some accountability on the prosecutor’s decision on whether to charge or not,” Richman said. “It’s an accountability-shifting device.”
DOJ Investigation
According to various press reports and publicly available information, the Justice Department is already well into its own investigation of the Trump’s actions related to the overturning of the election and storming of the Capitol.
FBI agents and Justice Department prosecutors have been collecting evidence from subpoenas, grand jury testimony, and witness interviews over the last several months as they explore potential criminal charges.
Jack Smith, a former US Attorney and head of the Public Integrity Section at the DOJ, was recently appointed by Attorney General Merrick Garland as a special counsel to lead the multiple, ongoing investigations into Trump.
In addition to the January 6th case, investigators are also examining allegations that documents with classified markings were mishandled when they were transferred from the White House to Trump's Mar-a-Lago residence after the presidential transition in 2021.
The National Archives and the FBI recovered thousands of documents from the Florida resort through subpoenas, a personal visit by agents, and an FBI search of the residence on August 8th. The Justice Department is also considering whether the former president’s team obstructed the investigation into the missing documents.
Due to the current pace of the investigations, experts predict that indictments will be issued early in the new year if DOJ officials decide to prosecute.
READ MORE from the WASHINGTON POST:
Jan. 6 committee refers Trump to Justice Dept. for criminal charges
Jan. 6 committee’s criminal referrals: What they mean for Justice Dept.
The Wrong Side of History
Regardless of what Jack Smith ultimately decides about criminal charges against Trump in regards to January 6th or the mishandling of classified documents, history will not be kind to the former president.
No president in the history of the United States has been impeached twice by the House of Representatives, referred for criminal prosecution from a congressional committee, and investigated by the Department of Justice for inciting an insurrection.
Combined with a tax fraud conviction for the business that bears his name and countless ethically-dubious actions during his time as president, Trump will be remembered as the most corrupt politician in American history.
Of course, conservative commentators and Republican politicians will blame the Biden administration and accuse the DOJ of becoming “politicized,” but the overwhelming evidence points to the contrary.
One would have to possess a fairly high suspension of disbelief to think that all of this was merely a political witch hunt.
Based on everything we know about Jack Smith’s experience and acumen, it appears he will not be swayed by the divisive political rhetoric and pursue charges if he believes he has a case.
Unfortunately, this eventuality might lead to a dangerous game of recrimination and revenge as investigations and impeachment proceedings usher in a new wave of performances on the political stage.
But this should not deter DOJ from moving forward. The only thing worse than people believing they are above the law is if they succeed.
Final Thoughts
I wrote an article for Medium in July 2020 entitled, The End of American Democracy. At the time, Trump and his fellow Republicans were just beginning to question the legitimacy of the upcoming election and floated the idea of not accepting the results.
Knowing that the peaceful transfer of power is one of America’s foundational principles, I argued that Trump and his followers were posing the greatest threat to our republic in its history.
At the time, I had no idea how far that threat would progress.
I assumed it was just political rhetoric, and even if Trump had a penchant for ignoring historical precedent, I figured that Republican leaders would not support him.
I never could have imagined what had transpired.
Now, the greatest threat to our republic is no longer about an attempt to overturn an election, but not holding them accountable for doing so.