Jan. 6 panel reluctant to make Trump criminal referral
The House panel investigating the violent Jan. 6 attempt to overturn the 2020 presidential election has sufficient evidence to make a criminal referral of former President Donald J. Trump to the Department of Justice. What investigators lack, reports The New York Times, is consensus on whether, colloquially speaking, to pull the trigger.
The House team plans to issue a report on its findings when finished but is wavering over whether political fallout could taint investigations by Attorney General Merrick Garland’s department. Those appear to be widening in recent weeks:
The shift in the committee’s perspective on making a referral was prompted in part by a ruling two weeks ago by Judge David O. Carter of the Federal District Court for Central California. Deciding a civil case in which the committee had sought access to more than 100 emails written by John C. Eastman, a lawyer who advised Mr. Trump on efforts to derail certification of the Electoral College outcome, Judge Carter found that it was “more likely than not” that Mr. Trump and Mr. Eastman had committed federal crimes.
The ruling led some committee and staff members to argue that even though they felt they had amassed enough evidence to justify calling for a prosecution for obstructing a congressional proceeding and conspiring to defraud the American people, the judge’s decision would carry far greater weight with Mr. Garland than any referral letter they could write, according to people with knowledge of the conversations.
The members and aides who were reluctant to support a referral contended that making one would create the appearance that Mr. Garland was investigating Mr. Trump at the behest of a Democratic Congress and that if the committee could avoid that perception it should, the people said.
But can it?
The House voted Wednesday to refer criminal contempt charges against former Trump aides Peter Navarro and Dan Scavino to the DoJ. It did the same with former White House chief Mark Meadows in December, but the department has yet to bring an indictment.
Commenting on Garland’s inaction on Meadows, Rep. Adam Schiff (D-Calif.) told reporters (Politico) in March, “The Department of Justice has a duty to act on this referral and others that we have sent.”
“Without enforcement of congressional subpoenas,” Schiff continued, “there is no oversight, and without oversight, no accountability — for the former president, or any other president, past, present, or future. Without enforcement of its lawful process, Congress ceases to be a co-equal branch of government.”
Panel members Rep. Elaine Luria (D-Va.) and Rep. Zoe Lofgren (D-Calif.) at the time vented frustration at Garland’s department.
“Attorney General Garland, do your job so we can do ours,” said Luria in March.
But now Lofgren argues that any referral of Trump would have no “legal impact.” She and other unnamed members believe a formal referral would be superfluous in light of evidence they have and that has been reviewed already by Judge Carter.
Luria disagrees.
“I think it’s a lot more important to do what’s right than it is to worry about the political ramifications,” Luria told MSNBC. “This committee, our purpose is legislative and oversight, but if in the course of our investigation we find that criminal activity has occurred, I think it’s our responsibility to refer that to the Department of Justice.”
Luria has the principled argument here. Garland himself has insisted his department will follow the evidence where it leads. The panel must do the same.
Having made multiple criminal referrals of White House staff in the course of its investigation, the panel’s punting on a criminal referral against Trump will reinforce public perception that politics trumps principle and that Trump stands above the law.
Republicans would make a criminal referral of a Democratic president whether or not any evidence supports it, and damn the consequences. See what they are passing in the states.
As for political fallout, what’s the worst that can happen? Democrats lose the House and Senate in November? The media promises daily that that is a virtual certainty. Should that happen, Democrats will be better off losing with their principles intact. Compromising for political expedience will demonstrate to voters across the political spectrum that Democrats do not have the Right Stuff to lead.
What Democrat and unaffiliated voters need to see is that justice is not dependent on position or power. They need to see Democrats willing to fight for justice and damn the political risks. No one gets excited about voting for the gutless.
Update: Fixed first name reference for Luria and Lofgren. (Had it out of order.)
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