by Noah Feldman
The Jan. 6 committee that concluded its work Monday represents the third and likely final chance for Congress to establish a historical record with regard to Donald Trump’s wrongdoing while president.
The first two opportunities were the first and second impeachment efforts. The House of Representatives did its job both times by impeaching Trump. The Senate, however, failed its constitutional role by declining to convict Trump either time, despite substantial evidence he committed high crimes and misdemeanors. Those didn’t need to be crimes described in the statute books, as I explained at the time.
Now the House committee has turned to the legally different question of whether Trump committed actual, statutory crimes. After doing real and sustained investigation, and gathering evidence from more than a million documents and a thousand witnesses, the committee has taken the unprecedented step of referring a former president to the Department of Justice for criminal prosecution.
The panel recommended criminal charges against Trump for obstructing an official proceeding of Congress (namely the counting of the electoral votes); for conspiracy to defraud the U.S. by denying the election results; conspiracy to make a false statement; and for inciting, assisting, or providing aid and comfort to an insurrection.
On the merits, these recommendations are correct.
The vote-counting on Jan. 6 was an official proceeding of Congress, and it is a crime to interfere in one. Notwithstanding the legal argument taking place in the lower courts now about whether the law, found in the Sarbanes-Oxley Act, really should apply beyond the context of altering documents, its text read in an ordinary way covers the interference on Jan. 6.
Trump’s pattern of trying to get parts of the government, including the Department of Justice, to lie about there being election fraud itself constituted fraud against the U.S. In fact, it would be hard to imagine a bigger fraud on the government.
The false statement charge derives from Trump’s plan to submit fake electors in various states. Again, the conduct fits the criminal prohibition.
Finally, the Jan. 6 attack on Capitol was certainly an insurrection. There is enough evidence to go to court to charge Trump with inciting it. To be sure, a court would have to apply First Amendment analysis to see if Trump intended to incite and if his words were likely to incite imminently. That’s what courts are for.
But the committee provided enough evidence to conclude that Trump should be charged criminally for interfering with the electoral process and trying to block a peaceful transition. We’ve known about this evidence for some time. It’s important that an official U.S. government body has marshaled it into the form of a formal accusation.
Trump genuinely sought to break American democracy. Nothing is more important to the democratic process than that the candidate who loses an election concede the race peacefully. The consequences of Trump’s conduct were thus profoundly threatening to democracy. The referral puts the House on the right side of history. Declining to refer Trump to the Justice Department would have amounted to a dereliction of duty.
Yet it’s important also to acknowledge that, notwithstanding its importance, the effect of the referral is mostly symbolic. Jack Smith, the special prosecutor appointed by Attorney General Merrick Garland, will not be influenced meaningfully by the referral.
On one hand, the referral could complicate Smith’s decision about whether to prosecute Trump. No doubt the House committee’s recommendation will be used by Trump supporters to argue that any subsequent criminal prosecution is partisan. Smith’s charge is to make any prosecution as purely nonpartisan and objective as possible, to restore public trust in a Department of Justice that came under enormous pressure from Trump to politicize its investigative and prosecutorial decisions.
On the other hand, if the committee had not referred Trump for criminal prosecution, Trump’s defenders would have said that Smith must not be more aggressive than a partisan House committee.
Seen in terms of this dual problem, the committee’s recommendation can be seen for what is: an accurate and important historical assertion by a body that is political by definition. And the bottom line is that Smith’s enormously difficult job isn’t any easier than it would have been without the committee.
If Smith decides not to bring criminal charges against Trump, the Jan. 6 report will probably end up as the final word from the federal government about what went wrong on that day. It won’t on its own stop Trump from being reelected. But like the impeachments, it will function as another component of the gradual process of convincing Republican moderates that Trump is unfit to be president again. That realization could in turn signal to harder-line Republicans that it makes sense to move on to other candidates.
If Trump indeed fades and does not become president again, the Jan. 6 committee’s referral will have had some role in the process. In the end, that should be the highest priority for anyone who cares about democratic elections. The only way to preserve democracy is by preserving the rule of law.