With two hearings under its belt already and one more coming up this week, the Jan. 6 committee is chugging along, full steam ahead, as it presents its findings on former President Donald Trump’s attempted coup following his defeat to now-President Joe Biden in the 2020 election.
On Monday, the committee began laying out detailed evidence of Trump’s push to overturn the results despite the credible data routinely presented to him by high-ranking officials proving he lost.
Witnesses to this scheme testified about those efforts to defraud the public. As Monday’s hearing came to its close, the committee raised the matter of whether the former president was liable for other crimes connected to a fundraising campaign that generated $250 million for a legal defense fund leading nowhere.
Committee chairman Bennie Thompson and vicechair Liz Cheney jolted the news cycle after the hearing with a pair of conflicting announcements about the probe’s path ahead.
Thompson told reporters the committee would not issue a criminal referral for Trump or anyone else it has investigated because that, he said, is the work of the United States Department of Justice. In response, vicechair Liz Cheney issued a statement saying a conclusion on issuing criminal referrals had not yet been reached.
“We will announce a decision on that at an appropriate time,” she said.
While this division is notable for a committee that has been largely unified in most steps it has taken publicly, in truth, whether the select committees issues a criminal referral or not, there are still other essential elements at play: The nation’s top cop on the beat, Attorney General Merrick Garland, is watching and so too are throngs of federal prosecutors flanking him.
“I am watching, and I will be watching all the hearings, and I can assure you that there are Jan. 6 prosecutors watching all of the hearings,” Garland said Monday.
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This, if the comments section of any news site on earth is to be considered, is cold comfort to some and no comfort to others.
But the Department of Justice is very rarely about the business of making Americans comfortable. The Department of Justice is about the business of investigating crimes and indicting people involved in those crimes. To start.
During the Trump administration, the lines between the department and Congress were blurred to put it lightly.
In fact, at the upcoming hearing this week, the committee is expected to demonstrate how Justice Department officials under Trump were targeted and pressured by the 45th president and his cronies to go along with a scheme announcing voter fraud in key election battleground states where there was none.
That didn’t ultimately end up happening because the people targeted at the DOJ by those yes-men observed the separation of powers.
The separation of powers, if just the last five years have taught Americans anything, is one of the most crucial elements underpinning a society that fancies itself a democracy, not an autocracy.
The committee has strived to respect the boundaries between itself and the DOJ for months and even as members waded through huge amounts of information posing equally huge amounts of potential criminal liability.
In short, the committee has said: It can investigate, and it can legislate, but it cannot prosecute.
A criminal referral, even if the committee issued one, would be symbolic at this point and even superfluous given what the probe has already established in court.
U.S. District Judge David Carter’s issued an opinion this March after reviewing a trove of communications between Trump and attorney John Eastman. Carter found the former president and Eastman were “more likely than not” engaged in a corrupt attempt to obstruct Congress on Jan. 6, 2021, and that “their campaign was not confined to the ivory tower—it was a coup in search of legal theory.”
Judge David Carter Ruling_T... by Daily Kos
The committee has already said, both in court and now in its hearings this month, that Trump may have committed crimes.
If the committee went ahead with issuing a referral, it wouldn’t be worth, in practical effect, much more than the paper it was printed on.
In April, committee member Zoe Lofgren, a California Democrat, explained it to Politico:
”A referral doesn’t mean anything. It has no legal weight whatsoever and I’m pretty sure the Department of Justice has read [Judge Carter’s] opinion, so they don’t need us to tell them it exists,” she said.
The “criminal referral” that the committee could send would effectively be a list of recommendations for actions to be taken by the Department based on their findings. This “referral” wouldn’t have any force in effect because the Department of Justice is the entity that decides whether charges should be brought, regardless of where it receives the allegations from.
It might give people who are still outraged about Jan. 6, and the wreckage Trump left in his wake a good, warm, fuzzy feeling, perhaps, but these people are also missing part of the very unsexy trick here.
Criminal charges do not hinge on whether investigators on the committee vote on a piece of paper that states something along the lines of “The Jan. 6 committee thinks the Department of Justice should indict former President Donald Trump for inciting an insurrection, defrauding the federal government, obstructing a congressional proceeding and committing wire fraud,” for example.
Would it be historic? Certainly.
But history is being made right now, and every time the committee airs a hearing. Every time the committee has won a lawsuit in its fight for transparency into a deadly attack, it has made history. The panel has exposed already the inner workings of a plot they allege was orchestrated by the former president.
They allege it. Just like prosecutors at the DOJ would initially allege it before the matter went to a judge or jury who would determine a verdict.
President Joe Biden has sided with transparency and has thus far expressed an unwavering commitment to getting to the bottom of the insurrection and letting congress do its work.
The committee has kept its nose clean as it has navigated ceaseless attacks and spin from opponents. The committee’s responses to that spin have overwhelmingly if not entirely been delivered eloquently while a stack of legal rulings from federal courts backing them up sits within arms reach.
It may seem strange after watching Trump and members of his administration treat all three branches of government as a personal playground. But if Americans can put their justifiable cynicism down for long enough to consider the facts before them, they may better understand why the committee has, for now, taken this tack.
Why Cheney would appear to conflict with Thompson on issuing a referral that is technically symbolic is unclear. The speculation behind that is an issue unto itself.
But can we consider for a moment that Cheney is still a Republican who has bet her career and her reputation in many powerful Republican circles on the committee’s work and her role in it?
For casual consumers of the probe in her constituency, a statement from the chairman saying a criminal referral is not likely might really twist things up for a person already pushing and testing their political limits, dynasty political family or no.
Making the case about Jan. 6 to the public is one thing.
Making the case to the Department of Justice is quite another.
The committee will keep making its case with a hearing on June 16 at 1 PM ET.
A hearing originally scheduled for June 15 was postponed Tuesday. Lofgren told MSNBC that it was “no big deal” and the panel’s staff needed a bit more time to put together video exhibits.
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