Criminal referral makes it easier for Trump defenders to smear DOJ probe

Bloomberg Opinion editorial board (TNS).

The decision by the House committee investigating last year’s riot at the U.S. Capitol to refer Donald Trump for criminal prosecution was unsurprising. The committee had spent nearly a year and a half building its case, which it presented in focused detail at its final hearing on Monday. Issuing criminal referrals to the Department of Justice was within the panel’s mandate. It was a lamentable move nonetheless.

There’s no question that the committee — made up of seven Democrats and two Republicans — found evidence of abominable conduct by Trump that day. The former president bears responsibility for attempting to overturn the results of the 2020 election, encouraging a mob to disrupt the certification of Joe Biden’s victory, and refusing to act while his supporters laid violent siege to the Capitol. Over the course of its investigation, the committee interviewed more than 1,000 witnesses, including many of Trump’s closest aides, his son-in-law and his eldest daughter.

An image of President Donald Trump is displayed on a screen as the House Select Committee to Investigate the January 6th Attack on the United States Capitol conducts its final hearing in the Cannon House Office Building on Monday, Dec. 19, 2022, in Washington, D.C. (Kent Nishimura/Los Angeles Times/TNS)

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Among the wealth of details the probe uncovered were first-hand accounts of the former president’s attempts to pressure his vice president, Mike Pence, to reject the Electoral College slates of several swing states and instead declare Trump the victor. Even as rioters roamed the halls of Congress on Jan. 6 chanting, “Hang Mike Pence” — coming, the committee revealed, within 40 feet of Pence’s security detail — Trump tweeted that the vice president “didn’t have the courage ... to protect our country.”

By any standard, such actions were an affront to the Constitution and to the rule of law. They clearly render Trump unfit for another term. Yet whether they merit criminal prosecution is another matter. The committee unanimously recommended that Trump and several associates be charged with four separate felonies, including obstructing an official proceeding of Congress and inciting, assisting, or providing aid and comfort to an insurrection.

These are serious charges. In addition to potentially leading to jail time, they could in theory bar Trump from holding federal office again. But the referrals themselves were entirely symbolic. They carry no legal weight and will have little practical effect. It will be up to Jack Smith, the special counsel appointed last month to oversee the Justice Department’s investigations into Trump’s post-election conduct, to determine if any indictments are warranted.

Given that reality, it’s fair to question the wisdom of recommending that the former president be prosecuted. The referral has further politicized the question of Trump’s guilt and made it easier for his defenders to smear Smith’s probe as a partisan vendetta. It risks elevating Trump in the eyes of Republican voters, at just the moment when many seem prepared to cast him aside. Perhaps most concerning, it risks setting a dangerous precedent: A future in which congressional investigations are routinely weaponized to prosecute political enemies now seems all too likely.

For better or worse, that ship has sailed. Moving forward, it’s imperative that Smith move quickly to make a final determination of Trump’s legal culpability. The kind of endless dithering that has characterized similar investigations in the past — from Kenneth Starr’s to Robert Mueller’s — will only worsen partisan division, exacerbate voters’ mistrust of government, and distract from more urgent problems. With the stakes so high, transparency and decisiveness must be the overriding priorities.

The House committee has done an admirable job in documenting Trump’s reprehensible conduct on Jan. 6. The faster the country can put those sordid events in the past, the better.

— From the Bloomberg Opinion editorial board (TNS).