The January 6 Committee’s Final Act: Pointless Criminal Referrals of Trump

If anything, the referrals could undermine the DOJ’s building of a successful prosecution.

T here is a danger in repeating the same script ad nauseam, as the House January 6 committee has done in its not one but two final performances.

Recall that the last one, in October, featured the dramatic proclamation that the committee was issuing a subpoena for Donald Trump’s testimony . . . under circumstances where it knew it would never get such testimony. Monday’s theater — apparently the finale, with Republicans poised to take control of the House and shutter the production — featured the dramatic proclamation that the committee is referring the former president to the Justice Department for prosecution . . . under circumstances where it knows such referrals are nonbinding and generally ignored by the Justice Department, except to the extent that they may be counterproductive to the building of a successful prosecution.

The danger of repetition is that one begins to notice flaws that previously slipped by, undetected. I finally caught a basic one during Monday’s performance.

If committee members have said it once, they’ve said it a hundred times: President Trump intended to disrupt the peaceful transition of power. If the phrase were a drinking game, we’d have been sloshed by intermission at each committee session. Alas, while repetition may be the mother of study, it is not, on the matter of political narratives, the mother of proof.

Forget the committee’s opening vow to establish that Trump masterminded a multipart conspiratorial enterprise. Here, the committee can’t even prove its basic point. The truth of the matter is that Trump intended to disrupt the transition of power. The committee has not come close to proving — much less proving beyond a reasonable doubt — that he intended disruption of the peaceful transition of power.

This salient distinction is easily missed because it cannot be gainsaid that the peaceful transition of power was disrupted. There was a riot, after all. It was carried out by Trump supporters. They assaulted security forces, injuring scores of police. They also smashed windows, broke through doors, and generally caused a nontrivial amount of physical damage to the facility (although Congress was able to reconvene a few hours later, since these rioters did not firebomb a federal facility, as left-wing radicals in Portland repeatedly did, nor burn the place to the ground and kill a person, as left-wing radicals in Minnesota did).

Nevertheless, the hole in the committee’s case has always been a criminally actionable nexus between Trump and the violence. There isn’t one.

That is worth keeping in the forefront of our minds as we assess the soliloquy that capped Monday’s committee theater: Representative Jamie Raskin’s delivery of “mummeries and straining-to-be-memorable” lines (to borrow the inimitable deadpan of Justice Scalia’s Obergefell dissent), insisting that never before in the history of history had a congressional committee been moved to recommend that the Justice Department indict a former president.

Raskin (a constitutional-law expert manqué, who was for election denial before he was against it) cited four criminal offenses. I’ll come to the first three in a moment, but the fourth is a doozy: Section 2383 of the criminal code, which makes it not only a felony punishable by ten years’ imprisonment, but a basis for disqualification from “holding any office under the United States,” for a person to incite, assist, or engage in an insurrection against the United States.

Though I wouldn’t be otherwise surprised, I suspect Raskin knows that a careful prosecutor would not try to apply Section 2383 to the presidency. The qualifications and disqualifications for the presidency are set forth in the Constitution; ergo, they cannot be altered by a statute — it would require a constitutional amendment. The Constitution limits disqualification to presidents who have been convicted at a Senate impeachment trial. Trump was acquitted at the post–January 6 impeachment trial at which Raskin served as chief House prosecutor. Section 2383’s disqualification provision appears to draw on Section 3 of the 14th Amendment, which provides for disqualification from some federal offices for participation in an insurrection (the Amendment’s framers had in mind the Civil War, a rebellion lasting four years and in which hundreds of thousands of Americans were killed). But Section 3 does not include the presidency (or vice presidency) among those offices.

Let’s set aside that the disqualification provision is inapplicable. The point is that the Justice Department, which has been probing the Capitol riot for two years with greater investigative resources and institutional competence than the January 6 committee, has charged upwards of 800 people in connection with the riot, yet it has not alleged that a single one of them committed the federal offense of insurrection. Not even those who clearly engaged in violence. What’s more, not only has that same Justice Department never charged Trump with any crime, let alone a crime of violence; it has not even cited him as an unindicted co-conspirator. Indeed, it has portrayed Trump as a pretext for the Capitol riot, not its catalyst. Prosecutors have aggressively opposed efforts by January 6 defendants charged with violent crimes to shift blame to Trump for their actions.

It is not legitimately possible to convict Trump of inciting a violent crime because, whether you accept that he meant it or not, he explicitly called for peaceful protest. The committee well knows that, but it studiously purged Trump’s allusions to nonviolence throughout its performances. The Justice Department doesn’t get to do that. The law mandates that prosecutors disclose exculpatory evidence . . . and when there is exculpatory evidence that negates a core element of a crime, the Justice Department does not indict the case in the first place. It’s not that the DOJ wouldn’t love to charge Trump with a violent crime; it’s that the DOJ doesn’t want the egg of acquittal on its face.

The three other referrals fare no better.

As predicted, Raskin & Co. relied on the rulings of California federal judge David O. Carter in recommending Trump’s prosecution for obstruction of Congress and fraud on the United States — both in connection with his reliance on attorney John Eastman’s fanciful legal theory that then–vice president Pence had the authority to refuse to count state-certified electoral votes that had been cast for Biden. To repeat, Carter was not making a judgment that there was sufficient evidence (i.e., proof beyond a reasonable doubt) for a jury to convict Trump and Eastman — the standard that matters to the Justice Department. He was instead narrowly holding that Eastman could not invoke the attorney–client privilege to withhold emails from the committee, because the so-called crime-fraud exception to the privilege was triggered. The exception is triggered by a far less demanding evidentiary standard: a finding that it was more likely than not that a crime or fraud was committed.

Apart from the inconvenient fact that the Eastman emails case was a civil evidentiary dispute and not a criminal trial, Trump was not even a party to the lawsuit. He had no opportunity to challenge either the evidence or Carter’s rulings. More to the point, if the Justice Department did charge the crimes Carter cited, it would be arguing, in effect, that a bad legal theory should be transmogrified into a criminal fraud. Every day, in courthouses all over the country, criminal-defense lawyers posit legal claims that are, um, creative (I’m trying not to say frivolous), in long-shot hopes of thwarting prosecution. Because our constitutional system guarantees free expression and robust criminal defense, the government has heretofore contented itself with giving frivolous legal theories the back of the hand, rather than prosecuting them as frauds on the court. A prudent Justice Department would treat Trump’s reliance on Eastman’s theory just that way. The committee’s referral notwithstanding, it is a hopeful sign that prosecutors have thus far refrained from charging obstruction and fraud conspiracies. Such a prosecution would broadly undermine the administration of justice.

Finally, the January 6 committee also recommends that Trump and perhaps others be prosecuted for making or at least abetting false statements in connection with the so-called fake electors — i.e., the purported alternative slates of electors formed up by Trump supporters in some key states won by Biden. It is not at all clear that this farcical exercise resulted in actionable false statements. It was patent that none of these alternative slates was ever certified by any state under its election laws.

The Trump electors plausibly say that they considered themselves “contingent,” not fake. The contingency was success in the legal efforts to persuade courts or state legislatures to invalidate the election result. Since the contingency did not happen, the point was moot — there was no thought on January 6 of counting alternative Trump electors. To be sure, it was underhanded of Trump’s legal advisers and congressional supporters to suggest that the existence of these alternative but noncertified slates could be a legitimate rationale for Pence to remand the electoral votes back to the state legislatures rather than counting them. But that does not mean anyone claimed the “fake” electors were real electors, or that their alternative, noncertified votes could legitimately be counted. That is likely why the Justice Department has not brought any such charges.

The vapidity of the committee’s referrals is magnified by its awareness that the exercise is, at best, meaningless. But it’s worse than that. There is no doubt that the Justice Department is trying to make a January 6 case against Trump. I’m glad they’ve resisted. To the extent the DOJ feels pressure to satisfy the Democratic base’s craving for charges against Trump, a prosecution based on his retention of sensitive government documents at Mar-a-Lago would be much cleaner.

But let’s say the DOJ were to forge ahead and indict Trump for conspiring to obstruct Congress and defraud the United States — the crimes Judge Carter highlighted. Even if Special Counsel Jack Smith had meticulously built such a case on reliable evidence, the committee’s referrals would bolster Trump’s defense that the charges against him were nakedly political. He would now be able to claim, plausibly, that the Justice Department only moved against him, after two years of conceding that he did not conspire with the rioters, when a hyper-political committee handpicked by Democrats called for his prosecution — and only after he declared his candidacy for the presidency. At that point, he would allege, the Biden Justice Department acceded to the Democrat-dominated committee’s recommendation that it bring charges that would eviscerate Trump’s campaign, thus removing Biden’s main rival from the field.

The anti-Trumpers of the January 6 committee would like to see Donald Trump be indicted. They would also like to be perceived as having caused Trump’s indictment, credit they’ll now claim if Trump gets charged after their referrals. But the blunt fact is that the committee’s referrals will have no bearing on whether the Justice Department decides to charge Trump. If the referrals have any relevance, it will be as Exhibit A in Trump’s defense that any indictment is sheer partisan politics.