The Times says the panel’s final report will be voluminous, with the executive summary alone running over 100 pages.
The House January 6 Committee will be back in the spotlight next week. A committee business meeting is scheduled for Monday afternoon. It will set the stage for the anticipated release of the committee’s report on Wednesday. That schedule is likely to hold: Wednesday is supposed to be the last day any part of Congress is in session prior to the holidays (the House is not scheduled to be in session at all; the Senate breaks on Wednesday, December 21). Plus, the J6 committee, handpicked by Democratic leadership with no panel members chosen by Republican leadership, would no doubt be disbanded by the new Republican majority if its work were not done by January 3, 2023, when Congress reconvenes.
You will no doubt be stunned to learn that the New York Times seems to have a great deal of insight into the committee’s imminent doings. The main point of Monday’s business meeting is the announcement of criminal referrals — i.e., suggestions by Congress that the Justice Department prosecute one or more people. The committee has signaled that it would likely recommend that former president Trump be charged with conspiracies to obstruct Congress and defraud the United States.
This is just grandstanding: A congressional criminal referral, even from a traditional committee that has the bipartisan political legitimacy that the J6 committee lacks, has no legal force. The best that can be said for it is that it has no influence over the Justice Department, which has more ways to obtain evidence and more expertise in criminal law than Congress. I say “the best” because sometimes a congressional referral can be counterproductive: The Justice Department may shy away from indicting because doing so could appear like a decision driven by politics rather than evidence.
In making its referral, the committee will likely place heavy reliance on opinions crafted by California federal district judge David O. Carter. Judge Carter has concluded that it was more likely than not that Trump and attorney John Eastman (who the Times suggests will also be referred) committed these crimes. As I have previously detailed, Judge Carter was not making a judgment that there was enough evidence to convict either man; rather, in proceedings in which Trump was not a party (specifically, Eastman’s contesting of a committee subpoena for his emails), Carter concluded that the so-called crime-fraud exception to the attorney-client privilege applied. Nevertheless, the committee has spoken of these rulings, and the press has dutifully amplified its meanderings as if there were a judicial finding that crimes were committed. That is not what happened.
The Times says that, besides the Justice Department, other entities to which the J6 committee may make referrals — civil and political referrals, as opposed to criminal — include the House Ethics Committee, the Federal Election Commission, and bar associations. We can deduce from this that the J6 committee will draw conclusions that (a) those Republicans who supported the Trump effort to pressure then–vice president Pence and the January 6 joint congressional session not to count state-certified votes, and who allegedly sought pardons from Trump, committed ethics violations; (b) Trump may have violated campaign finance laws by raising around $250 million for an election defense fund and then never creating such a fund (the committee said the money instead went to Trump’s “Save America” political action committee — “the big lie,” California Democrat Zoe Lofgren quipped, became “the big rip-off”); and (c) Trump’s legal advisers propounded factual claims and legal theories that they knew were baseless.
I have argued that the J6 committee has functioned as a grand jury, which is not a proper role of a congressional committee, with the caveat that a congressional impeachment committee may legitimacy investigate whether crimes were committed. Hence, the J6 committee has, in effect, conducted the impeachment investigation that Congress failed to conduct after the Capitol riot.
To critics who make such contentions, the committee counters that it is doing the real legislative work of considering changes to current law: overhauling the Electoral Count Act, proposing legislation to enforce the 14th Amendment’s disqualification for public office, and even amending the Insurrection Act, according to the Times. I’d note that an amendment of the Electoral Count Act has already been proposed — Democrats could have enacted it already because it has broad GOP support, so we hardly need the J6 committee to weigh in. A number of us NR-types have weighed in on Section 3 of the 14th Amendment, which does not apply to the president. (See here, here, and here.) As for insurrection, Trump never invoked the Insurrection Act, as some of the J6 rioters hoped he would, and although the Justice Department has charged over 800 people, it has not charged anyone with committing the federal crime of insurrection.
The Times says the panel’s final report will be voluminous, with the executive summary alone running over 100 pages. The paper adds, “The committee’s report is also expected to document how Mr. Trump summoned a mob of his supporters to Washington and then did nothing to stop them as they attacked the Capitol for more than three hours.”
I suppose we will have to see if the committee acknowledges that, in its hundreds of prosecutions of rioters, the Justice Department never named Trump as an unindicted co-conspirator or claimed he was implicated in the violence. Of course, that does not preclude Trump’s potentially being charged for obstructing Congress by using a frivolous legal theory and political pressure to induce it not to count the state-certified votes. The Justice Department is actively investigating with an eye toward bringing such charges. But it is worth bearing in mind that the prosecutors have implicitly rejected the Democrat-controlled committee’s claims that Trump, in effect, ordered a riot.