trump's Criminal Referrals

Today wasn't exactly Christmas, but it's close enough to Saturnalia to feel festive about how the House Select Committee investigating the January 6th Insurrection wrapped up their work and submitted their findings.

Facing the reality that the incoming Republican majority of the House would shut them down - and likely repudiate everything they uncovered and documented - the committee gave a summary presentation, and voted on submitting their recommendations of further action against those they found deeply involved in the creation, managing, and execution of the violent riots that tried to disrupt Congress from voting on the Electoral College results.

Andrew Prokop at Vox goes into the details and what the next steps should be:

The committee argues that the former president not only bears responsibility for the storming of the Capitol on January 6, 2021, but that his effort to overturn the presidential election was incredibly extensive, corrupt, and illegal...

The committee presents the most comprehensive effort to make the case against Trump we’ve seen so far, with much more evidence about, and understanding of, what actually happened than Congress had back when the House impeached Trump for these events days after they transpired...

The latest version of events reads a lot more like a prosecutorial brief, and, in a sense, it is one — committee members voted Monday to recommend Trump’s referral for prosecution by the Justice Department. They argued he likely committed four crimes: 1) Obstruction of an official proceeding, 2) Conspiracy to defraud the United States, 3) Conspiracy to make a false statement, and 4) Assisting an insurrection. (Helpfully, a federal judge, David Carter, already ruled months ago that evidence suggests Trump committed some of these crimes, and the committee cites his analysis.)

The referral will mean little in practice, because the DOJ has long been investigating these matters on its own, with special counsel Jack Smith now in charge of that probe. But reading the executive summary gives a sense of what some future prosecutor like Smith might say if an indictment of Trump does proceed...

That's one of the sticking points why we as a nation can't celebrate yet: Congress may investigate matters and reveal evidence much like a grand jury, but actual prosecution rests with the Executive branch with the Justice Department. In theory, the Attorney General (Merrick Garland) could ignore the committee's recommendations entirely. If there's any good news here, it's that Garland appointed a Special Counsel in Jack Smith, and he's been aggressively pursuing trump's electoral interference well enough to suggest he'll follow through on some of what the committee's uncovered.

And what the January 6th committee uncovered was just how close our nation came to a straight-up coup d'etat:

When the nation watched Trump’s attempt to stay in power unfold in real time, it often seemed faintly comical. Unhinged figures like Rudy Giuliani, Sidney Powell, and pillow salesman Mike Lindell played starring roles spreading utter nonsense as establishment Republicans tried to avert their eyes. Judges constantly threw Trump’s lawsuits out of court, and GOP state officials refused to act on his behalf. Fiascos like Giuliani’s Four Seasons Total Landscaping press conference ensued...

But the committee’s investigation and the executive summary of its report put forward a very different interpretation of events. Rather than flailing and silly, they argue that Trump was deadly serious all along. They say his conduct was generally part of a larger plan. They say there’s some evidence it was premeditated. And they don’t buy the argument that Trump may have believed his own lies — they say he was knowingly prevaricating.

First, the committee argues that when you look at Trump’s conduct after the election in totality, it does look like a larger plan. Early in the executive summary, the committee lists among its key findings that Trump:

* Spread false allegations of fraud related to the 2020 election

* Plotted to overturn the outcome of the election

* Corruptly pressured Vice President Mike Pence, US Justice Department officials, state officials and legislators, and members of Congress to help him overturn the election

* Oversaw an effort to send fake electoral certificates to Congress

* Submitted and verified false information as part of his court challenges to the outcome

* Summoned thousands of his supporters to Washington, inflamed them on January 6, and then delayed intervening to rein them in once many of them stormed the Capitol

All this, the executive summary asserts, amounts to a “multi-part conspiracy to overturn the lawful results of the 2020 Presidential election.” That is: this wasn’t ordinary politics, it was a criminal conspiracy...

Second, the committee argues that Trump’s decision to falsely declare victory on election night was “premeditated.” They cite evidence that Tom Fitton of the conservative group Judicial Watch advised Trump to do this days before the election, and that outside allies like Steve Bannon and Roger Stone predicted Trump would do this. (Speculation that Trump would do this was also widespread in the media...)

I personally doubt trump needed others like Fitton, Bannon or Stone to push him to lie about winning. It's BEEN in trump's nature to never admit he loses, so lying about it was going to happen anyway. What the committee found was trump's closest advisors were going along with that lie, hence the criminal conspiracy.

Third, there’s the issue of prevarication. The committee argues Trump was not just mistakenly believing conspiracy theories about election fraud, but was rather “purposely and maliciously” lying to the public. One striking table in the executive summary lists 18 incidents in which Trump was privately informed a specific claim he was making about election fraud was false, only for Trump to subsequently repeat that false claim in public. These include claims about thousands of dead people voting in Georgia, “rigged” voting machines, and reported malfeasance at vote count sites. Again and again, he was told these claims were inaccurate, but he just kept making them.

Whether Trump was knowingly lying in claiming election fraud is an important question to sort out, because it gets to the question of his intent and has implications for the strength of criminal charges against him. If Trump knew he was lying as he made his false claims, that could help any future prosecutors make their case. The committee again and again takes the position that their evidence supports the view these were knowing, deliberate lies...

We've known - I speak in the plural 'we' about my fellow Americans, both Republican and Democrat alike - for years that trump lies, and he lies at a level of gaslighting that no other public figure has done in ages (it's been proven his political opposites like Obama and Hillary don't lie as much as trump does). The horrifying thing is that trump's supporters ignore the lying, happily buying his lies because it's the Narrative they need to justify their fear and their hate.

It's been a problem all these years, because trump's gaslighting made it difficult to ever hold him accountable, as his political allies kept passing the buck on where trump's lying needed to stop. As David Frum notes at The Atlantic (paywall), it's been a problem that's been avoided for too long:

There has never been any mystery about what happened on January 6, 2021. As Senator Mitch McConnell said at Trump’s second impeachment trial, “There’s no question—none—that President Trump is practically and morally responsible for provoking the events of the day.”

Thanks to the work of the congressional committee investigating the attack on the Capitol, Americans now have ample detail to support McConnell’s assessment. They know more about when and how Trump provoked the event. They have a precise timeline of Trump’s words and actions. They can identify who helped him, and who tried to dissuade him.

But with all of this information, Americans are left with the same problem they have faced again and again through the Trump years: What to do about it? Again and again, they get the same answer: “It’s somebody else’s job.”

Frum points out, at every turn investigating trump's potentially criminal behavior trying to hold him accountable, the government failed to do so. Mueller's investigation into Russia's interference in the 2016 elections revealed a lot of criminal behavior by others - and to successful plea agreements and jury trials - but when it came to holding trump to account for his acts of obstruction, Mueller refused to indict a sitting President - blame that damned OLC memo arguing for immunity - and tried to pass the buck to Congress to impeach him instead. The Democratic-controlled House refused.

Soon after that, Congress had a chance to hold trump accountable for his attempted extortion of Ukraine to force that country to falsely claim "investigation" of Hunter Biden to give trump mudslinging material against Joe Biden in 2020. They had him both making the threats and trying to hide the evidence, but the failings of impeachment - the partisan divide making Republicans refuse to impeach their own - meant trump walked away from that.

Frum then points out the accountability trump faced with voters - with 81 million siding with Biden - only led to trump pulling every criminal scheme he and his advisors could think of to overturn those results. In Frum's view the rejection by voters should have been the end of trump, but trump found political allies among wingnut Republicans in Congress to assist him with the January 6th riots, and who are publicly defending trump to this day.

Frum doesn't even mention the ongoing scandal that was trump's open violations of the Emoluments Clause, because the legal argument of "who had authority to file charges" delayed the matter long enough for trump to avoid it. Again, an accountability moment set aside by a legal system that didn't want to dig too deep into trump's greed and malice, much to the detriment of our nation's ethics.

And so the circle was complete. Criminal prosecution? No, it’s up to Congress. Congressional impeachment? No, leave the decision to the voters. Refusal to accept an election defeat? Back to criminal prosecution.

To repeat McConnell’s phrase, it’s “practically and morally” very difficult to hold a wayward president to account. An American president is bound by law and operates through legal institutions, but a president also has sources of personal authority that are not beholden to the law and are exercised outside institutions. Trump drew more deeply than most presidents on nonlegal, non-institutional authority.

trump dodged accountability because no previous President broke the rules the way trump did. Our system of federal checks and balances relied on a practice of "Good Faith" between parties that no longer means anything, and with branches of government - the Legislative, Executive, and Judicial - unable to determine who does what.

And now Frum - much like the rest of America - is wondering if this Select House Committee's findings will be taken seriously by the one federal office - the Justice Department - finally left holding this ever-passed hot potato.

There are serious signs - evidence of DOJ grand juries examining a number of trumpian crimes - that justice may indeed be coming for donald trump. But it needs to be swifter than ever before, because trump will keep finding ways to avoid his fate and mock our laws again and again.

The real celebrating should kick in when these criminal referrals on trump's violent lies turn into criminal charges, and a perp walk in handcuffs for the ages.

Get to it, Justice.