Column: The Jan. 6 committee should call Trump's crime a crime

Committee members seated in front of flags with two people facing them at a witness table

April 19, 2022 3 AM PT

There’s little doubt that the House Jan. 6 select committee believes it has gathered enough evidence to prove federal crimes by Donald Trump connected with the effort to derail President Biden’s 2020 victory at the polls. But committee members are divided about whether to take the next step of a criminal referral to the Department of Justice.

The pros and cons are worth discussing, but in the end, the committee shouldn’t hesitate. The downside of a referral is not as compelling as the upside of making its position crystal clear.

In its simplest form, the debate seems to come down to this: Will making a referral increase or decrease the chances that Trump is held accountable? Some think a referral would pressure the Justice Department to indict; others think it might only annoy Atty. Gen. Merrick Garland and make indictment less likely.

It’s true, as opponents of referral point out, that if the Jan. 6 committee makes the request, it won’t have legal effect. Congressional committees are investigative bodies, not prosecutorial ones. The decision to bring charges rests fully with the Department of Justice (perhaps in this case, given the gravity of a prosecution of a former president, in consultation with the White House).

And unlike the Jan. 6 group’s contempt of Congress referrals (against Stephen K. Bannon, Mark Meadows, Peter Navarro and Dan Scavino Jr.), the committee isn’t even the victim of the putative crime. In referring Trump, the committee will be essentially just transmitting the evidence it has gathered. Its bottom-line legal analysis is neither required nor material.

But there is also no institutional reason for the Jan. 6 committee to withhold its opinion. For starters, the members and staff of the committee are rich in prosecutorial experience and judgment. (Remember the fairly magnificent closing arguments in the first impeachment of committee member and former Assistant U.S. Atty. Adam B. Schiff ?)

And it’s a routine part of the government’s working structure for the branches to communicate with one another and suggest, from the standpoint of their owninterests, what action another branch should take. Judicial opinions, for example, include suggestions of executive or legislative action. To suggest that a criminal referral from Congress amounts to inappropriate weeding in the Justice Department’s garden is just wrongheaded.

As for moving the needle with Garland, there’s no cause for celebration or concern. What we’ve seen since his tenure at Justice began only underlines Garland’s reputation as a fiercely independent prosecutor. He has spent most of his storied career making difficult decisions regardless of political considerations. He has proved neither impressionable enough to be moved one way, nor thin-skinned enough to be moved the other.

There are more crucial — and thornier — rationales for and against referral.

If the committee were to make the referral and if Garland, in the exercise of his independent judgment, brought a case against Trump, Republicans would scream all the more loudly, and with increased plausibility, that the indictment was mere partisanship, a rank effort by Trump’s political enemies to bring the former president down. In other words, a referral could undermine the public’s and history’s perception of the outcome.

Still, the plausibility of the GOP’s partisanship case would increase only by a marginal amount. Referral or no referral, if the Justice Department brings charges against Trump, Republicans will howl, and a portion of the country surely will believe that it’s all politics, no matter the evidence or the outcome.

In fact, the bigger danger in terms of public perception would arise from a decision not to refer. That could activate what I’ll call the Mueller effect.

Remember that special counsel Robert S. Mueller III, in finalizing his investigation of Russian collusion with the Trump campaign, believed himself bound by a Justice Department policy not to indict a sitting president. From there, he took the extra prophylactic step of not even opining on Trump’s criminality. It would have been unfair, Mueller concluded, to call the president a criminal without his having a chance to clear himself in court.

The result was a muddled mishmash in the public’s mind, which Trump exploited at every turn, proclaiming deceptively, “No collusion, no obstruction.” A careful reading of the Mueller report contained the opposite conclusion, but without a clear statement of that from Mueller, such analysis was too little, too late. The Trumpian view took hold in enough of the electorate to matter.

The Jan. 6 Committee runs the same risk if it pulls its punches. Trump could proclaim, misleadingly, that the committee had not found sufficient evidence to ask the Justice Department to indict him. And the committee’s lack of a “verdict” could be spun to blunt the force of any determination that the former president was indeed a criminal.

The Jan. 6 committee is a political body, not a legal one. But that is not to say its conclusions are unimportant or unrelated to the truth, or to the historical verdict. The committee needs to follow through with the logical conclusion of its investigation. The evidence it has gathered and that we’ve seen so far — not all of it has been made public — details as stunning a dereliction of presidential power as the nation has seen.

For the Jan. 6 committee to get that far but then sidestep the obvious by not calling a crime a crime would depreciate its own historic work.

@HarryLitman