Members of the House Select Committee to Investigate the January 6th Attack on the US Capitol hold the last public meeting in the Canon House Office Building on December 19, 2022, in Washington, D.C.(Photo by Chip Somodevilla / Getty Images)
The Select Committee to Investigate the January 6th Attack on the US Capitol held its final public hearing on Monday. The committee unanimously voted to recommend that former president Donald Trump be criminally charged for obstruction of Congress, conspiracy to defraud the United States, and insurrection. The committee also released all of the depositions and other evidence it gathered over the course of its 18-month investigation, and emphasized that, in addition to Trump, there may be other individuals who should be charged with crimes. They also referred four members of Congress who defied subpoenas to the House Committee on Ethics.
As many have noted: These criminal referrals legally mean jack squat. Congress is not a law enforcement body. Congress can write the laws, but it’s up to others to determine if those laws have been violated. That’s a good thing, and the next two years of Kevin McCarthy and the Republican Congress hunting Hunter Biden’s penis pics will prove the wisdom of having at least nominal separation of powers between our political bodies and our law enforcement apparatus.
Unfortunately, Merrick Garland’s Department of Justice is the law enforcement body responsible for holding the people who attacked the country accountable. Whether Trump is actually charged for the crimes the Select Committee laid out is, and has always been, up to the discretion of Garland and the DOJ.
“Discretion” is the key word. People want the law to work like a robot, or a mathematical formula: “Do X, get Y.” Indeed, the entire criminal justice system and most prosecutors nourish the idea that charging decisions are made by institutional automatons who apply the law to the facts without passion or prejudice. But in reality, prosecutors hold complete discretion over who gets charged, and those charging decisions (or declinations) are largely unreviewable. Donald Trump could have shouted, “I ordered the Code Red!” at the select committee, and Merrick Garland could still decide to hide under his desk instead of doing his job.
Whether Garland, newly appointed special counsel Jack Smith, Toonces the Driving Cat, or whoever the hell else Garland wants to pass the buck to uses their discretion to charge Trump with the crimes literally everybody saw and heard him commit is anyone’s guess. A nearly endless stream of institutional sycophants are all saying that the DOJ will take these criminal referrals seriously, though the DOJ itself has officially declined to comment on the congressional suggestions. I mean, what are they going to say? “We will use these congressional allegations as kindling for our department yule log, thank you.” I am sure that somebody over at the DOJ will totally read the committee’s report. Maybe twice!
Regardless of what, if anything, the DOJ does with the Select Committee’s referrals, we know that the Justice Department has been conducting an independent, parallel investigation into the deadly Capitol attack, and we have to assume that investigation includes looking into all potential crimes committed by the former president. As so often happens, we’ve seen prosecutors use their discretion to charge the easy cases—such as the white supremacist foot soldiers in Trump’s attempted coup. But DOJ defenders might say that charging Trump—whether through their own investigation or the select committee’s referrals—is a much harder case.
That’s not really true. If the law did operate in a robotic fashion, Trump committed his crimes so publicly and brutishly that it’s not really hard to make out a case against him. If Trump escapes charges, it won’t be because the case against him was too hard to make. It will be because the DOJ used its discretion to be cowards.
Consider the three charges laid out by the committee. The “obstruction” charge—Title 18 Section 1512 c—says that it’s illegal to attempt to obstruct or impede an official proceeding of Congress. The entire point of Trump’s actions leading up to the attack on Congress was to impede the election certification process. He literally ordered his armed mob to march down to the Capitol in the hope of intimidating Mike Pence, who was presiding over a closed session of Congress. That is… impeding a proceeding. This is the easiest thing to charge him with in the universe.
The charge for “defrauding” the American people—Title 18 Section 1001 and Title 18 Section 371—goes directly to his fake electors scheme. The statute at Section 1001 makes it illegal to “falsify, conceal, or cover up by any trick, scheme, or device a material fact.” Section 371 is the “conspiracy” version of that, making it illegal to enter into a fraudulent scheme with a number of people. Trump and his cronies were out there pushing a scheme to submit electors that were not electors. This is fraud. Trump’s intent to use these electors to defraud the public is documented by the overwhelming number of people, including his own attorney general, Bill Barr, telling him that he lost the election. Trump’s only defense, that he was listening to the advice of counsel like Rudy Giuliani, John Eastman, and Sidney Powell, is what I’ve called the “wino defense.” Namely, you don’t get a pass on crimes just because you find a few lawyers off the street to tell you what you want to hear. If a wino-lawyer tells you not to pay your taxes, and you don’t, you’re still guilty of tax evasion. Again, this charge is not hard to make stick.
The only criminal referral that is even a little bit tricky to charge is the “insurrection” charge. Under Title 18 Section 2383, it’s illegal, somewhat obviously, to incite or engage in a rebellion against the United States. Legal “incitement” can be a difficult standard. You have to show that Trump’s words produced an imminent threat of violence against the government, and that he knew his words would do so. I think it’s pretty clear that Trump did in fact incite the crowd to violence—what with all the violence the crowd did after his speech—but it’s a little harder to prove that’s what he wanted (even though that’s clearly what he wanted) than the other two charges.
But you take my point. Trump has spent every day since he lost the election committing these crimes, so of course he should be charged with them. If he isn’t, people who think their job is to defend the DOJ and mainstream media outlets addicted to drama will make it sound like it would have required some kind of John Grisham level of lawyering to make the case. It really does not.
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Representative Jamie Raskin said, “Ours is not a system of justice where the foot soldiers go to jail and the masterminds and ringleaders get a free pass.” But he’s wrong. That’s exactly what our system of justice does all the time. The people who make the system of justice work that way are prosecutors, cowardly prosecutors who would rather bury a low-level, poorly represented criminal in a trucker hat under the jail than risk tangling with a well-funded, politically connected, openly guilty white man in a suit.
The decision is now in the hands of Garland and Smith. We don’t need them to be heroes. We don’t need them to be super lawyers. We need them to simply do their jobs.
The January 6 committee has taken this as far as a political body could possibly go. Now we wait to see if the Department of Justice will use its discretion to prosecute a criminal, or if punching down is all it’s prepared to do.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.