Many of Trump’s critics, on Capitol Hill and elsewhere, have long believed he should face criminal prosecution — and not just for the riot. Ever since the House committee was formed, it has sat in the background: What does this bode for Trump?
In recent days, the issue has come to the fore.
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On Sunday, committee member Adam Schiff (D-California) was asked by ABC News’ Martha Raddatz if he thought Trump should be criminally prosecuted for the riot. Schiff was quick to differentiate between what the committee could do — gather evidence — and the Justice Department’s ability to press charges.
“I would like to see the Department of Justice investigate any credible allegations of criminal activity by Donald Trump or anyone else,” Schiff replied, adding that there were “parts of these different lines of effort to nullify the election that I don’t have”. I don’t see any evidence that the Department of Justice is investigating.
To reinforce the idea that the department should be doing more, Schiff pointed to U.S. District Judge David O. Carter’s determination in March that Trump had likely broken the law. But charges mean building a case.
“Once the evidence has been accumulated by the Justice Department, it must decide whether it can prove to a jury beyond a reasonable doubt the guilt of the president or anyone else,” Schiff added. “But they should be investigated if there is credible evidence, which I think there is.”
Criminal charges would mean the Justice Department would get an indictment against Trump. This would likely (but not necessarily) follow a potential criminal dismissal from the committee, a non-binding recommendation that the department pursue such action.
Committee chairman Bennie G. Thompson (D-Miss.), for his part, doesn’t seem keen on going that route.
“We’ll tell the facts,” Thompson said after Monday’s hearing. “If the Justice Department looks at it and assumes there’s something that needs further investigation, I’m sure they will.” When asked if the committee could make a criminal referral, he replied, “no, that’s not our job.”
Before long, other members of the committee made it clear that they thought it might be. Committee Vice Chair Liz Cheney (R-Wyo.) wrote on Twitter that the committee “has not issued a finding regarding possible criminal references. We will announce a decision on this in due course.” Rep. Elaine Luria (D-Va.) Free a similar thought, as the committee itself did in a statement.
“At this time, the committee is focused on presenting our findings to the American people in our hearings and in our report,” reads in part. “Our investigation is ongoing and we will continue to gather all relevant information as we present facts, offer recommendations and, if warranted, make criminal referrals.”
Good. The committee could therefore make such a reference. But that doesn’t mean the Justice Department has to do anything with it.
Schiff told Raddatz that the department “has to make a decision as to whether they can prove to a jury beyond a reasonable doubt the guilt of the president or anyone else. an investigation if there is credible evidence, which I think there is.
In a commencement address at Harvard University last month, Attorney General Merrick Garland alluded to this issue.
“We are undertaking one of the largest investigations in our history to hold accountable all those who were criminally responsible for the January 6 assault on our democracy,” he said. “We will follow the facts wherever they lead.”
“Together,” he said later, “we must ensure that the magnitude of an event like January 6 is not minimized or underestimated. The commitment to the peaceful transfer of power must be respected by every American.
It’s safe to assume that the words “every American” were chosen with care.
Of course, there’s a big difference between a House committee saying Trump broke the law and accusing a former president of conspiracy or obstruction (as committee members seem to argue). There’s a big difference between a judge determining that Trump likely broke the law — affecting whether communications between him and his attorney can be withheld at committee — and a grand jury making that determination. And there’s a big difference between Garland saying in the abstract that those responsible for Jan. 6 should be held accountable and actually making the dramatic and politically heavy decision to try to do so.
It’s been over a year and a half since the Capitol riot. So far, the harshest punishment that has resulted has been Twitter’s ousting of Trump from its platform. He was impeached, yes, but he had already been impeached. He left the White House, but that was a function of the election, not of his denial of that electoral loss. Beyond that, he’s just a rich man whose approval Republicans seek.
The House Select Committee appears poised to refer a criminal case to the Justice Department — and that, too, may go all the way. There may simply be no accountability as a result of the investigation, and Trump’s critics will once again have to revise their expectations.
The next possible opportunity for accountability would be heavy: the 2024 Republican presidential primaries.