Criminal referral may have helped Trump — by politicizing the DOJ’s decision


Like much of the House January 6 committee’s proceedings, its final meeting on Monday, featuring dramatic criminal referrals of the former president of the United States, was theater.

In connection with the Capitol riot, the committee claims its investigation has shown that Donald Trump and others conspired to obstruct Congress, defraud the United States, suborn false statements, and incite insurrection.

Yet, despite prosecuting upwards of 800 people in connection with the Capitol riot, the Justice Department hasn’t charged a single person with the federal crime of insurrection. Moreover, in connection with the most serious charges involving violence — seditious conspiracy and conspiracy to obstruct Congress — the DOJ has not even cited Trump as an unindicted co-conspirator, much less charged him.

To the contrary, prosecutors have taken the position that he was a pretext for violence, not its catalyst; they have rejected efforts by the rioters to shift blame to the former president.

The best thing that can be said about criminal referrals — which are merely recommendations by Congress or one of its committees that the Justice Department consider prosecuting a named person — is that they don’t make a bit of difference to prosecutors.

Trump is shown in a graphic during Monday's House Committee meeting.
Trump is shown in a graphic during Monday’s House Committee meeting.
ZUMAPRESS.com

There are many reasons for this. To begin with, such referrals have no legal effect. In our constitutional system, prosecution is an executive function. Congress has no responsibility for it, and no accountability for it. If an indictment is brought and an acquittal results, it is the Justice Department that takes the heat. By then, the lawmakers who’ve recommended an indictment have long ago moved on to their next performative exercise.

Because the Justice Department is responsible for prosecution, it has far more expertise in the criminal law than Congress does — investigation is its main job, not a sideline as it is for members of Congress.

More importantly, prosecutors have their own avenues for pursuing evidence, and they are superior to those of a congressional committee. To be sure, Congress can issue subpoenas, as the January 6 panel has done liberally. The subpoena is a powerful tool. Yet, the Justice Department can also issue subpoenas — on the authority of the grand jury or the court — to compel the production of testimony and tangible evidence. Beyond that, prosecutors may also bring witnesses before the grand jury in secrecy to build cases, and they may obtain search and arrest warrants from the court to seize evidence and apprehend suspects.

Chair of the committee, Bennie Thompson, speaks during Monday's hearing.
Chair of the committee, Bennie Thompson, speaks during Monday’s hearing.
Jim LoScalzo – Pool via CNP / ME

Most significantly, the Justice Department has the unilateral constitutional authority to bring, or refrain from bringing, criminal charges, which is what induces cooperation from accomplices. Congress has none of these prosecutorial tools. That is why its committees are reduced to drumming up “referrals.”

Because the Justice Department has superior institutional competence and a superior investigative arsenal, it is neither necessary nor prudent for prosecutors to rely on a congressional assessment of whether crimes have been committed. Prosecutors are in a far better position to make an informed judgment as to whether an indictment is in the public interest.

Then there is politics.

Congress is an innately political body. Even if the January 6 committee were a normal, bipartisan panel, it would still be driven by its elected members’ perception of their political interests. The Justice Department, by contrast, is staffed by unelected appointees who are expected to enforce the laws in a non-partisan manner. To fortify that expectation, cases are brought before an independent judiciary and tried before juries — everyday Americans who are carefully vetted to ensure that they will decide the case solely based on the evidence, not partisanship.

Of course, the January 6 committee is not normal. It was handpicked by Democratic leadership. Even the committee’s two Republicans were chosen by Speaker Nancy Pelosi, over the heated objection of GOP leadership. The only required credential for committee service was a loathing of Donald Trump. The committee permitted no cross-examination or alternative perspectives. Its sessions were not adversarial hearings; they were highly rehearsed, dramatic presentations of testimony and video, spliced and diced to support a political narrative that went unchallenged.

Trump supporters descended on the Capitol on Jan. 6.
Trump supporters descended on the Capitol on Jan. 6.
AFP via Getty Images

Which is why the referral may actually hurt a prosecution.

Even if prosecutors meticulously build a case with reliable evidence and testimony, a referral enables the defendant to argue that the indictment is politically motivated.

Let’s say Trump is eventually indicted for a January 6 crime. Because of Monday’s committee referrals, he would now be able to claim that the Biden Justice Department hadn’t taken any action until a high-profile, Democrat-dominated committee demanded prosecution. He’d be able to argue that, prior to the partisan referrals, DOJ had neither charged Trump, nor even alleged he was implicated in the riot, in cases it has brought against 800 people over a period of two years.

Trump would point out that only after he announced that he was running against President Biden did a Democrat-controlled committee issue a nakedly partisan call for prosecution, and only then did Biden’s Justice Department answer that call with an indictment clearly designed to knock out a candidate Biden fears.

The committee's decision to recommend criminal charges could actually help the former president.
The committee’s decision to recommend criminal charges could actually help the former president.
AFP via Getty Images

There are rebuttals to all these claims, but the point is that the Justice Department never wants to be put in the position of rebutting plausible claims that its work is political. The January 6 committee’s referrals do not help DOJ build a prosecution, but they may well help Trump build his defense.

Andrew C. McCarthy is a former federal prosecutor.



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