By Margaret M. Russell
After 18 months investigating, the House Select Committee to Investigate the January 6 Attack on the United States Capitol held its final public meeting on Dec. 19, 2022. The panel recommended that the U.S. Department of Justice bring criminal charges against former President Donald Trump for his efforts to overturn the 2020 presidential election results.
The House committee recommended that the Justice Department pursue four main charges against Trump – obstruction of an official proceeding, conspiracy to defraud the U.S., conspiracy to make a false statement and inciting or assisting an insurrection. The committee also recommended that the House Ethics Committee sanction four Republican members of Congress who refused the committee’s subpoena requests to provide information about the events of Jan. 6.
But what does that all mean? The Conversation asked Margaret Russell, professor of constitutional law at Santa Clara University, to help explain why these recommended charges are important, where they fall short – and what could come next.
Drew Angerer/Getty Images
1. What are the biggest takeaways from these referrals?
People have wondered whether the proceedings would have any strong result. Now it is clear that the committee does not see these proceedings as primarily about making a historical record. They have done more than that.
One big takeaway is that Trump is at the top of the pile. When the proceedings began it was not clear – though many people suspected and alleged – how much he knew, when he knew it, what he said before Jan. 6, what he knew and said before the election’s certification, and whether he knew he really had not won the election. It is now clear Trump was the architect of most of this conspiracy – and the committee is urging specific accountability for him and other people who played a part in it.
It is also interesting to think about the committee urging criminal prosecution. It really means it reached the brink. This bipartisan committee, which comprised seven Democrats and two Republicans, decided unanimously that backing away from criminal charges would be a dereliction of its duty to recommend, based on what it has found. Committee members are not telling the Department of Justice what it has to do – they can’t. But in their investigatory role they concluded that in order for there to be accountability, they needed to recommend charges.
2. Do these referrals have any legal teeth?
The magnitude of these recommended charges, particularly the insurrection one, is unprecedented. Rather than saying they don’t have legal teeth, I think they certainly have very strong teeth in the sense of urging the Department of Justice to make sure that there is accountability. Accountability is a word that jumped out to me in committee members’ statements on Dec. 19 – there must be accountability, even though this committee, of course, cannot force the Department of Justice to do anything.
The charges, of trying to overthrow the government, essentially, go right to the heart of the Constitution. There is no historical precedent for this. The Justice Department’s determination to pursue the referrals would depend on the validity of the House commitee’s findings. And since the department has been doing its own investigation of Trump, it wouldn’t be starting from ground zero. The committee’s work could be added to what it has.
Roberto Schmidt/AFP via Getty Images
3. Will the new GOP Congress have any say in these referrals?
Now that the report has been handed over and the referrals made, I would imagine the Department of Justice will start considering it. And, so, when there is a difference in leadership of the House there won’t be any way to undo it. The House can conduct its own investigations, but it cannot stop the Department of Justice and it cannot undo this report and its recommendations. Attorney General Merrick Garland has clearly sent a message that the department he runs is not influenced by outside factors. And he has tried to insulate any prosecutions from accusations of political influence by appointing a special counsel to oversee the Trump investigations.
4. Were lawmakers who ignored the subpoenas legally required to obey the committee’s request for testimony?
I think the answer is yes. The Constitution (Article I, Section 5) states that each chamber makes its own rules that bind its members. The Supreme Court has underscored this constitutional power as well as the legal legitimacy of the congressional subpoena. The consequences of ignoring a congressional subpoena might ultimately wind up within the purview of the Ethics Committee, but there are consequences.
5. Does the House committee’s report increase the likelihood that Trump will be charged?
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. 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. As committee member Adam Schiff said on Dec. 19, “I think the day we start giving passes to presidents or former presidents or people of power or influence is the day we can say that this was the beginning of the end of our democracy.”
Margaret M. Russell is Associate Professor of Law at Santa Clara University.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
FlaglerLive relies on a strong core of donors. But they’re just a fraction of the 25,000 readers who daily depend on FlaglerLive for reliable, fearless reporting and analysis you cannot get anywhere else. If you’re still on the sidelines, we need you to join the Friends of FlaglerLive today. Elections, storms, the latest catastrophe - when dependable and factual local reporting will be more essential than ever, take a stand for integrity and have a direct voice in fostering serious journalism in your community. As little as $10 makes a difference, or better still, become a monthly donor: Become a "Friend of" FlaglerLive, a 501(c)(3) non-profit news organization. Donations are tax deductible. Think of it as buying a "scoop", in every sense of the term!
Reader Interactions
Comments
Leave a Reply
This site uses Akismet to reduce spam. Learn how your comment data is processed.
Jimbo99 says
“I think the day we start giving passes to presidents or former presidents or people of power or influence is the day we can say that this was the beginning of the end of our democracy.”
Might as well lock all of them up that are still alive ?
James says
No one is above the law not even a President of the USA or an ex President. #45 can go down in the history book as the first President of our country who committed an insurrection against his own country. Very sad to witness grown men in the GOP party too afraid to stand up for our constitution, and that too will be in our history books.
Nephew Of Uncle Sam says
Don’t forget Twice impeached.
Michael Cocchiola says
What it means is that vile orange pond scum, that scourge of our democracy, that traitor to all that is good in our country, is veering ever closer to being held accountable for his crimes.
What I find appalling is that his congressional and political enablers and his family will avoid the consequences of their seditious actions. People like Michael “Gen. Jack D. Ripper” Flynn, Mike The Pillow Guy” Lindell, Roger “Hitman” Stone, disgraced lawyers John Eastman and Rudy Guliani, and of course, the evil sons from hell.
I will consider justice done when I see Trump broke, senile, and living in a 2 br, 1 ba, basement appartment with his entire family of liars, cheaters, scammers, incubuses and sucubuses. May they all be damned to live like that forever.
coyote says
From Terry Pratchett’s Discworld Novel – The Last Continent
——————
“Some chief went to prison to see the prime minister and said, ‘Mate, your mob can dig it all up and drop it over the edge of the world, no worries.’”
“Why did he have to go to prison?”
“We put all our politicians in prison as soon as they’re elected. Don’t you?”
“Why?”
“It saves time.”
—————-
Timothy Patrick Welch says
Really…
Maybe these law makers should focus on their job and leave such work to the Judicial branch of government.
Another waste of tax dollars?
Laurel says
TPW: I agree. Republicans should not be looking into Hunter Biden’s laptop, as he is not a politician but a private citizen. DeSantis should not form a committee to investigate covid vaccinations that he once stated would save lives. However, Republican and Democrat leaders should be looking into the insurrection as they did. They were attacked. Our Capital was attacked. They did one hell of a job investigating it! Now, it goes to the judicial system, as it should.
It’s hard for us to believe that it will be hard to prove beyond a reasonable doubt what we saw with our own eyes, and heard with our own ears, but the system is meant for the conclusion to be agreed upon by our peers.
Too bad Trumpers do not want to watch Republicans, who worked in the Capital, testify on the January 6th insurrection. yet they seem to know all about it. Too bad, it’s an eye opener. All of the series can be found on YouTube.
Thomas Kaspar says
“Republicans should not be looking into Hunter Biden’s laptop, as he is not a politician but a private citizen. ” Hunters Laptop = “dont forget 10% for the big guy” correct ? …
Laurel says
Thomas: If Hunter Biden’s laptop shows criminal activity, then it should be pursued and prosecuted by the criminal justice system, not Congress. That is way over the top! Should Congress start checking all citizens’ laptops for any possible, unfavorable or illegal activity? It is clearly an attempt to revenge the Democrats and make citizens look away from Trump. Hunter Biden is not in charge of our country, past or present. Heck, that hard drive has been around for a long time now. If there is something there, I imagine it’s been known for that long a time as well. Yet, it stays a talking point, not much more.
Thomas Kaspar says
These are facts . Read the letter , and who signed the letter and who covered up the laptop story to get big guy 10% Joe Biden elected .
“More than 50 former senior intelligence officials have signed on to a letter outlining their belief that the recent disclosure of emails allegedly belonging to Joe Biden’s son “has all the classic earmarks of a Russian information operation.”
https://www.politico.com/news/2020/10/19/hunter-biden-story-russian-disinfo-430276
Laurel says
Thomas: Then let the legal system prosecute him! They have the hard drive, there you go. That’s it. Stop making it a talking point, take action.
The Russians were a lot happier with you know who in charge.
Jack Howell says
One of the classes I teach at the University is Terrorism-Counterterrorism. As we study how individuals become functioning members of a terrorist group, we examine the radicalization process. When watching the beginning of Trump’s rise to the presidency, his gullible followers followed the path, drank the proverbial kool-aid, and became radicalized into the Trump cult! They wholeheartedly caved in and believed his lies and general BS! Yes, there is truth in the saying that it eventually becomes true when you tell a lie and continue to tell it repeatedly. This was core to the Trump political agenda. The most significant part of Trump’s strategy was to bully viciously any politician who disagreed with him. The primary tool was social media, Twitter, Fox News, Alex Jones, Rush Limbaugh, and other half-baked individuals. Bullying is Trump’s strength. It was evident during the Presidential debates when he attacked his opponents and would not comply with the protocols and rules of these debates. In his mind, he is more than President. He is emperor for life, or so he would like us to believe.
Donald J. Trump is nothing more than a grifter, a con man extraordinaire! Now the truth has been revealed about the real Donal J. Trump. While both Mary Trump (Too Much and Never Enough) warned us about the real Donald Trump, so did John Bolton (The Room Were it Happened) as well as Maggie Haberman ( Confidence Man- The Making of Donald Trump and the Breaking of America). The truth has been revealed not only in these publications but also in the January 6 Committee findings. Now it is up to the Department of Justice to bring criminal charges against Donal J. Trump as a fitting closure to con man Trump.
Laurel says
Jack Howell: I totally agree with you. What continues to baffle me, is how strong the Kool Aide is! His followers really dislike, and are suspicious, of the “coastal elite,” yet it’s hard to find anyone more “coastal elite” than Trump. Trump is infamous for not paying workers after a job, yet I see someone in an old, battered work truck with a Trump sticker, as if Trump gives a damn about that working man who could not be let near Mar-A-Lago. Trump was a Democrat, and supported Democrats the Clintons for years, when it was convenient for him to do so, and now…
Wow! Rationalization is an amazing thing!