From
the Washington Post (Dec 27, 2021) with this headline:
“Opinion: Here’s why a
criminal referral for Trump by the January 6 committee is a bad idea”
My introduction note: Interesting informative legal opinion article from
a very experienced attorney – formatted below to fit the blog with key parts
boxed off for emphasis.
The House Select Committee investigating the January 6
attack on the U.S. Capitol reportedly is considering a
criminal referral of former president Donald Trump to the DOJ Committee Bennie
Thompson (D-MS) said
last week that the Committee would not hesitate to make such a
referral if the facts warranted it.
Rep. Liz Cheney (R-WY), the committee’s vice chair, caused
some raised
eyebrows in mid-December when she employed language from the felony
obstruction-of-justice statute (graph above) used
to charge scores of Capitol rioters, asked whether Trump may
be similarly culpable.
A criminal investigation
of Trump for possible crimes related to the riot is
indeed warranted. But a criminal referral from Congress would actually undermine
the goals of both the DOJ and the Committee. It’s a bad idea.
A criminal referral has no
real legal effect; it is simply Congress informing the DOJ about potential
criminal conduct. It does not compel or allow prosecutors to do anything they
cannot already do.
The DOJ may decide the
matter is not worthy of investigation, may investigate and decide not to bring
any charges, or may decide to prosecute — the same options it has with any
information it receives.
In many cases, a referral results when the alleged crime is
directly related to congressional proceedings.
If a witness appears to lie during congressional testimony,
Congress may refer that witness to the DOJ for an investigation of potential
perjury or related crimes.
The contempt-of-Congress statute used to charge former Trump adviser Steve Bannon requires a formal referral from Congress to the U.S. attorney.
In such cases, Congress itself is the victim
of the alleged crime. Absent the referral, prosecutors might not be aware of
what occurred.
At other times, during the course of its legislative or
oversight work, Congress uncovers facts suggesting past criminal conduct
unrelated to Congress itself. Again, here a referral alerts the DOJ to the
conduct so it can consider whether investigation and prosecution are
appropriate.
But the DOJ does not need a referral from Congress to be aware of the potential crimes surrounding January 6 — including those potentially committed by Trump himself.
The events leading
up to the assault on the Capitol are widely known. They have been the subject
of numerous media reports and books, not to mention a full
impeachment proceeding.
The riot is the subject of what is likely the largest and most complex federal criminal investigation in history, with hundreds of people already indicted.
The DOJ is deeply enmeshed in investigating the events of January
6 and does not need a congressional heads-up. A criminal referral would be
worse than unnecessary — it would be counterproductive.
AG Merrick Garland is
working to restore the DOJ’s reputation for keeping politics out of criminal
prosecutions. If Congress injects itself into the criminal process, it could
make Garland’s job more difficult.
It would be that much
easier for Trump to claim that any later prosecution was a political witch hunt
and that Garland was simply carrying water for House Democrats.
Talk of criminal referrals also threatens to hinder the January 6 committee’s own efforts to obtain information.
Lawsuits resisting the
committee’s subpoenas filed
by Trump, by his
former Chief-of-Staff Mark Meadows, and others argue that the committee has
no legitimate legislative purpose. They claim the committee is unlawfully
investigating the Trump administration simply to expose potential misconduct.
When the committee’s leaders highlight possible criminal referrals, rather than
legislative reforms, they bolster such arguments and undermine the committee’s
position in those lawsuits.
Some suggest a criminal referral for Trump would be
important because it might prod the DOJ to move on potential prosecutions. But
there is zero evidence to support that suggestion. The department is already
engaged in a massive criminal investigation of the events of January 6.
Some
are dissatisfied with the investigation’s pace, or with what they
perceive as its scope. But a public shove from Congress is more likely to
create a political backlash than it is to spur prosecutors to new action.
The committee is always free to share information with the DOJ privately. Presumably such back-channel communications are already going on. But that’s a far cry from a public declaration of the committee’s view about the criminal ramifications of information it obtains.
If the committee is interested in seeing high-level
criminal prosecutions for the Capitol riot, the best thing it can do is resist
the political urge to make a criminal referral.
Congress should focus its efforts on legislative reforms to
prevent a future event like January 6, and leave the criminal implications to
prosecutors.
Now this insert: Remember when Speaker Pelosi said “no” to McCarthy’s GOP picks for the Select Committee and the GOP went nuts? One of those she said “no” to was Rep. Jim Jordan (R-OH).
Look at Jordan's text extract below to Mark Meadows on January 5 – one day before the insurrection. Now just imagine
if Jordan were seated on the Select Committee trying to find the truth. What a
joke and total farce that would be. So, congrats to Speaker Pelosi for saying “no”
to Jordan being on that committee. Smart on her part – very smart:
My 2 Cents: As I said in my
introduction this is an exceptional legal analysis of the topic floating around
about whether to refer Trump to the DOJ for a criminal investigation regarding
the January 6 insurrection of the Capitol, or not.
I fully understand the
scope of the article but at the same time I see a possible loophole for Trump
(as I suspect he might try to use) to avoid any legal penalty for the part in the planning
and execution of the January 6 riot – which is factual and needs close public
attention.
Thanks for stopping.
No comments:
Post a Comment