Criminal law

What a Criminal Referral Means for Trump – Constitutional Law Expert Explains Action Taken by the January 6 Commission


After 18 months of investigation The House Select Committee to investigate the January 6 attack on the US Capitol held its last public meeting on December 19, 2022. The committee recommended that the US Department of Justice bring criminal charges against former President Donald Trump over his efforts to overturn the results of the 2020 presidential election.

The House Committee recommended the Department of Justice to pursue four main charges against Trump – Obstruction of official procedures, conspiracy to defraud United States, plot to Make a false statement And encouragement or assistance insurgency. as recommended by the committee The House Ethics Committee Sanctions four Republican congressmen who refused subpoenas to provide information about the events of January 6.

But what does all this mean? Conversation asked Margaret RussellProfessor of Constitutional Law at Santa Clara University, to help explain why these recommended charges matter, where they fall short — and what could happen next.

A middle-aged black man with a white beard wearing sunglasses stands in front of the US Capitol building, surrounded by people holding audio recorders and phones.

US Representative Penny Thompson, chairman of the House Select Committee to investigate the January 6 attack on the US Capitol, speaks to reporters in November 2022.
Drew Angerer/Getty Images

1. What are the biggest takeaways from these referrals?

People have wondered if the measures will lead to any powerful outcome. It is now clear that the Commission does not consider these actions primarily related to the establishment of a historical record. They’ve done more than that.

One big takeaway is that Trump is at the top of the heap. When the proceedings began, it was not clear – although many people suspected and claimed – how much he knew, when he knew it, what he said before January 6th, what he knew and said before the election was certified, and what Whether he knows In fact, he did not win the election. It is now clear that Trump was the architect of most of this conspiracy, and the commission is urging specific accountability for him and the other people who played a part in it.

It is also interesting to consider the commission urging criminal prosecution. This really means that they have reached the edge of the abyss. This bipartisan panel, which includes seven Democrats and two Republicans, decided unanimously that to drop the criminal charges would be a dereliction of its duty to recommend, based on its findings. Committee members don’t tell the Justice Department what to do – they can’t. But in their investigative role, they concluded that for there to be accountability, they needed to recommend charges.

2. Do these referrals have any legal teeth?

The scale of these recommended charges, especially the charge of insubordination, is unprecedented. Rather than say they don’t have legal powers, I think they certainly have very strong powers in the sense of getting the Department of Justice to make sure that there is accountability. “Accountability” is the word that jumped to my mind in the committee members’ remarks on December 19 – there has to be accountability, although this committee, of course, can’t force the Justice Department to do anything.

The accusations of trying to overthrow the government basically go to the heart of the constitution. There is no historical precedent for this. The Justice Department’s determination to pursue referrals will depend on the validity of the House committee’s findings. And since oath It was done on its own The Trump investigation will not start from scratch. The committee’s work can be added to what it has.

A man wearing a gas mask stands in a crowd of people holding trump and american flags and holding a bronze bust of a man in a suit

A rioter in the Capitol attacks on January 6, 2021 holds a bust of Donald Trump.
Roberto Schmidt/AFP via Getty Images

3. Will the new GOP convention have any say in these referrals?

Now that the report has been submitted and referrals made, I imagine the Department of Justice will begin to look into it. Therefore, when there is a difference in the leadership of the House of Representatives, there will be no way to undo it. The House of Representatives can conduct its own investigations, but it cannot stop the Ministry of Justice, nor can it retract this report and its recommendations. Obviously, Attorney General Merrick Garland I sent a message That the department he manages is not affected by external factors. He has tried to isolate any prosecutions for accusations of political influence through the appointment Special advisor To oversee the Trump investigation.

4. Were legislators who ignored subpoenas legally obligated to obey the committee’s request to testify?

I think the answer is yes. The Constitution (Article I, Section 5) stipulates that each House makes its own rules that bind its members. The Supreme Court has affirmed this constitutional power, as well as the legal validity of the congressional subpoena. The consequences of ignoring a congressional subpoena may ultimately end up in the Ethics Committee’s purview, but there are consequences.

5. Does the House Committee Report Increase the Likelihood of Trump’s Indictment?

I think this makes a strong case in the public domain for impeachment of Trump, which a lot of people have been waiting for. It does not guarantee a trial, but it does explain, I think very accurately, why Trump is included in this and in the introduction.

The House committee’s impeachment message – that if the nation is to see itself as a successful democracy, there must be accountability for Trump and others – was very powerful. as a member of the committee Adam Schiff said on Dec. 19:“I think the day we start giving passes to presidents or ex-presidents or people with power or influence is the day we can say this was the beginning of the end of our democracy.”


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