The commission of January 6 of the House of Representatives He may have framed a potential criminal case against Donald Trump, but that doesn’t really bring the former president any closer to facing prosecution.
The Department of Justice has already been conducting its own large-scale investigation into the January 6, 2021 insurrection in the Capitol federal government and attempts by Trump and his allies to reverse the results of the 2020 presidential election.
The special prosecutor in charge of that investigation has given no indication of what charges he might bring, but he is not required to take into account the commission’s criminal recommendation or follow the prosecution plan presented by the panel.
“This is historic: that a commission of the Congress recommended criminal charges against a former president, but it doesn’t change the fundamental fact that the Department of Justice will be the one to decide who should be charged,” said Ronald Weich, dean of the University of Baltimore School of Law. and former assistant attorney general for legislative affairs for the agency.
“The Department of Justice should not be influenced by any other branch of government,” he added.
The panel referred Trump for possible criminal prosecution for four criminal offenses, related to the riot itself and his attempts to cling to power. These include accusations that he contributed to the insurrection, he conspired to defraud USA in trying to prevent the transfer of powers, he conspired to make a false statement through an alleged scheme involving so-called “fake voters,” and obstructed an official procedure: the counting of electoral votes by Congress.
At least some of these possible charges cover general areas that the Justice Department is known to already be investigating.
For example, prosecutors in June issued a series of subpoenas to Republicans who served as “fake electors” in battleground states won by Trump. The former president and those close to him lobbied authorities in those states to replace Biden’s voters with their own based on misleading or nonexistent accusations that his victory was stolen.
The statute with the greatest consequences that the commission invoked is the one that penalizes inciting or collaborating in an insurrection or rebellion against the government. The statute prohibits anyone found guilty from returning to elected office.
It is unknown how seriously the Justice Department will take that statute, which has not been used in any of the more than 900 federal lawsuits against those involved in the Capitol storming.
In the executive summary of the report, the commission asserts that Trump was directly responsible for summoning his supporters, who subsequently stormed the Washington compound. In addition, it highlights how a federal judge determined that the then-president’s speech to a crowd of supporters that same day “plausibly” led to the riot.
But the commission’s suggestion that Trump could be held accountable for his inaction during the assault, including failing to deploy the military to the Capitol or waiting hours to ask the crowd to disperse, might make sense. “Intuitively,” but it’s a theory the Justice Department may take with a grain of salt, said Rory Little, a professor at the University of California Hastings School of Law, San Francisco.
“The danger of that idea, that standing by and watching an insurrection take place, when something could be done about it, is quite a dangerous precedent,” he said. “American criminal law doesn’t usually punish people who stare.”
Even so, criminal referrals will almost certainly accelerate demands by Democrats and the public for action by Attorney General Merrick Garland, as they view the referral, and accompanying evidence, as a guide to the prosecution.
