The January 6 Committee on Monday recommended to the Justice Department four criminal charges against former President Donald Trump: obstructing an official proceeding, conspiring to defraud the United States, conspiring to make false statements to the feds, and inciting an insurrection.
The committee does not have the ability to charge Trump, but the group is trying to influence the DOJ to move forward with charges.
Will the DOJ move to indict? Here’s what the experts are saying.
National Review columnist Andy McCarthy, who formerly served as an Assistant United States Attorney for the Southern District of New York, suggested the DOJ will not move to indict Trump in relation to January 6.
“The hole in the committee’s case has always been a criminally actionable nexus between Trump and the violence. There isn’t one,” McCarthy explained on the insurrection charge, adding that the other three charges don’t fare any better.
The legal expert argued that the committee’s actions might actually work to favor Trump.
“The anti-Trumpers of the January 6 committee would like to see Donald Trump be indicted,” he wrote. “They would also like to be perceived as having caused Trump’s indictment, credit they’ll now claim if Trump gets charged after their referrals. But the blunt fact is that the committee’s referrals will have no bearing on whether the Justice Department decides to charge Trump. If the referrals have any relevance, it will be as Exhibit A in Trump’s defense that any indictment is sheer partisan politics” (emphasis added).
“It’s not that the DOJ wouldn’t love to charge Trump with a violent crime; it’s that the DOJ doesn’t want the egg of acquittal on its face,” he added.
McCarthy, though, left the door open on the DOJ moving against Trump concerning the raid at Mar-a-Lago. “To the extent the DOJ feels pressure to satisfy the Democratic base’s craving for charges against Trump, a prosecution based on his retention of sensitive government documents at Mar-a-Lago would be much cleaner.”
Former Trump-era Attorney General Bill Barr has suggested the same. Barr said last month that the department likely has a “basis for legitimately indicting” Trump over the documents.
“If the Department of Justice can show that these were indeed very sensitive documents, which I think they probably were, and also show that the president consciously was involved in misleading the department, deceiving the government, and playing games after he had received the subpoena for the documents, those are serious charges,” the former AG told PBS’s “Firing Line.”
Constitutional expert Jonathon Turley seems to be in agreement with McCarthy about future J6-related trouble for Trump, noting that the committee was focused on presenting Trump’s “inaction” as opposed to building a case concerning the former president’s actions to allegedly incite the breach.
“Building a case on the failure to act is a very challenging prospect for prosecutors who need to satisfy elements of a crime,” he posted to Twitter Monday. “The promise in the last hearing to produce new direct action failed to materialize.”
“It is important for the Committee to share evidence of action rather than inaction showing criminal acts by Trump,” he said. “Most of us viewed this as a disgraceful attack on our constitutional process, but criminal charges require proof of intent and other elements.”
…It is important for the Committee to share evidence of action rather than inaction showing criminal acts by Trump. Most of us viewed this as a disgraceful attack on our constitutional process, but criminal charges require proof of intent and other elements.
— Jonathan Turley (@JonathanTurley) December 19, 2022
“The Committee repackaged largely the same evidence,” Turley added on Tuesday morning. “That is not enough.”
“Indeed, the reliance on a new videotape of former Trump aide Hope Hicks seems a case of putting ‘hope over experience’ in the criminal justice system [w]hile still based largely on the failure to act,” he added. “Adam Schiff insisted that ‘if that’s not criminal, nothing is.’ The opposite may be true from a First Amendment perspective. If the failure to act is criminal, it may be harder to see what would not [be] criminal under this standard.”
While still based largely on the failure to act, Adam Schiff insisted that “if that’s not criminal, nothing is.” The opposite may be true from a First Amendment perspective. If the failure to act is criminal, it may be harder to see what would not criminal under this standard.
— Jonathan Turley (@JonathanTurley) December 20, 2022
A constitutional expert who leans Left, Associate Professor of Law at Santa Clara University Margaret M. Russell, wrote at The Conversation that the committee has spelled out reasons for the DOJ to move forward on the referrals.
“I think it makes a strong argument in the public sphere for the prosecution of Trump, which is what a lot of people have been waiting for,” she said. “It doesn’t guarantee a prosecution, but it spells out, I think meticulously, why Trump is included in this and at the forefront.”
“The House committee’s message of accountability – that if the nation is to consider itself to be a democracy that works there must be accountability for Trump and others – was made very powerfully,” Russell added.