Jan. 6 panel signals interest in whether Trump committed a crime

(The hillThe Jan.6 select committee said it intended to explore possible wrongdoing by former President Trump, marking a significant escalation in the investigation that could put pressure on the Biden administration.

The panel said it could send Trump to the Justice Department for prosecution if he finds overwhelming evidence, in what would be seen as an open invitation to Attorney General Merrick Garland to be more aggressive towards the former president than it was not during his tenure. far.

representing Liz cheney (R-Wyo.), The vice-chairman of the select committee, gave the first indication during a hearing earlier this month that the panel is examining whether Trump has committed a crime.

Citing the statutory text for an offense of obstructing justice, Cheney said a key question for the select committee’s investigation is: “Donald Trump, by action or by inaction,” he sought by corruption to obstruct or hinder the official procedures of Congress for counting electoral votes? “

Obstructing formal proceedings is a charge punishable by up to 20 years in prison. Federal prosecutors used it against hundreds of rioters who allegedly participated in the attack on the Capitol.

But bringing the same charge against a president who has never set foot in the building would require far more complex legal and political calculations.

“The challenge is… this indefinite territory of circumstances in which an executive official crosses the line between the exercise of executive power and actual obstruction of justice,” said Daniel Hemel, professor of law at the University of Chicago.

The comments about Trump’s potential wrongdoing come after months of growing frustration among Democrats and criticism from Trump that Garland and the DOJ are not doing enough to tackle potential illegal activity at the highest levels of the previous administration.

Any criminal referral to the select committee alleging that Trump violated the law would be a clear escalation in lawmakers’ efforts to pressure the Biden DOJ to be more aggressive towards the former president.

But criminal referrals to Congressional investigators carry no legal weight to compel federal prosecutors to lay charges, unlike the criminal contempt of referrals to Congress which must be approved by a floor vote in the House and have already given rise to charges against Steve bannon, Trump’s former White House strategist who pleaded not guilty last month to a pair of misdemeanors for defying select committee subpoenas.

Jeff Robbins, a former federal prosecutor who has also served as an investigative advisor on two Senate committees, said for such a referral to be compelling for federal prosecutors, it must be backed up by strong evidence that would not only support the laying charges. but show evidence of guilt beyond a reasonable doubt.

“A committee that wishes to make a compelling referral will be as specific and as detailed and as evidence-based as possible, providing something as close to a basis of accusation on a silver platter as possible,” a- he declared.

Robbins said any referral involving a former president would be subject to an even higher standard, but added that the committee’s credibility would support its findings in the eyes of the Justice Department.

“There will be a tendency to look very, very, very carefully at any criminal referral involving Donald Trump, to kick the tires over and over,” Robbins said. “But on the other hand, they will treat a criminal referral to this committee – given its leadership and the quality of the lawyers – as a serious document if that is what happens to it.”

Throughout the first year of the Biden administration, Garland sought to keep politics at bay as he inherited a department that had been used repeatedly to advance Trump’s political goals and protect his personal interests. during the previous four years.

In some high-profile cases, Garland’s DOJ has backed the legal positions defended by the department during the Trump administration, including defending the former president in a libel lawsuit against E. Jean Carroll, who accused Trump of raped in the ’90s, and arguing that an internal DOJ memo exonerating him of wrongdoing in connection with the Mueller investigation should remain secret.

The department has shown few signs that it is pursuing a criminal investigation into Trump.

“It’s going to be very difficult to condemn him here in part because I don’t think we have a Nixon Watergate smoking gun,” Hemel said, noting that although a jury is made up of people who “hate Trump by all bones in our body ”, they might be reluctant to convict him of obstructing formal proceedings.

And pursuing the charges against Trump could be a heavy undertaking beyond the political implications. Such a prosecution would be unprecedented and could be jeopardized by legal uncertainties as to whether a president could be charged with a felony for actions he took during his tenure.

The obstruction charge that federal prosecutors have leveled against many rioters in what is seen as a new interpretation of the law has so far survived a series of legal challenges by the defendants, but it remains to be seen whether the juries will find obstruction cases. persuasive.

“The courts have made it clear in at least three different decisions that rioters on the ground can be prosecuted for conspiracy; there is no reason to believe, if the evidence permits, that the former president cannot be indicted in the same way, ”Bradley Moss, a national security law expert, told The Hill by email.

“If the DOJ is to take this politically explosive step, they undoubtedly identified admissible evidence that Trump intended to obstruct the certification process, that his actions in recommending the mob march on Capitol Hill were more than ‘a simple throwaway line, and that he was aware of his “war room” efforts to intervene if the mob actually prevented Congress from completing its certification process. “

But Hemel sees the downside of losing the case as a much worse outcome, arguing that an unsuccessful prosecution against Trump would only strengthen the former president and increase the threat he poses to American democracy.

“There was a lot of criminal activity on January 6. Are they making a case against President Trump? I do not think so. And, my god, I think I’m glad the DOJ isn’t putting resources into a mindless racing effort to tear the country apart further and further raise the political profile and demagogic myth of Trump, ”Hemel said.

It is not known what evidence, if any, the committee gathered to support a criminal referral against the former president. But while lawmakers are able to convincingly present to the public that Trump broke the law, some believe it would be important for the Justice Department to follow through in order to send the message that no one is above the law. laws.

Katherine Hawkins, senior legal analyst at the Nonpartisan Project on Government Watch, says it’s important for the select committee to draw its own conclusions about whether Trump broke the law and, whether he finds he did so, to clearly articulate the case against him.

Hawkins said the DOJ’s tendency to defend the legality of executive branch actions makes the congressional investigation even more crucial. She pointed to the Senate Intelligence Committee’s investigation into the CIA’s torture practices, part of which was made public in 2014, which found the agency had overstepped legal justification for the practices and committed in a cover-up. Despite the Senate panel’s findings, the DOJ has never prosecuted anyone for their role in the torture of terrorist suspects.

“I think the committee should seriously consider making a well-substantiated referral, because otherwise we just get silence from the DOJ, which could be [doing a] diligent investigation, theoretically, but given how the torture investigation unfolded, how the Department of Justice approaches violation of executive law in general, and what we’ve seen from Garland, I doubt it ” , said Hawkins.

She added that the committee’s findings will be valuable even if they make a referral that DOJ chooses not to act on.

“The simple act of revealing the truth is valuable in itself,” said Hawkins. “It’s really important to know how close we’ve come together and what mechanisms could be in place to prevent this from happening again. But also if there is any evidence of unsolved crimes that we do not know if the Justice Department will investigate, I think it is entirely appropriate that the committee put this at the feet of the Department of Justice and say, “What are you doing with this?” What is happening here?'”

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