The House’s January 6 committee has completed its work, making a criminal referral on several charges to the Attorney General. The editors of the Washington Post declaim:
This criminal referral is symbolic; the Justice Department is responsible for making a tough call on whether such charges would stick — and whether it would be prudent to indict a former president and current presidential candidate.
The committee has secured its legacy in different ways, providing a searing picture of what occurred on Jan. 6, 2021, and exhibiting the cowardice of those who, out of fear of Mr. Trump, refused to help it reckon with that dark day.
The public now knows much more about Mr. Trump’s culpability. New details, including videotaped testimony from former Trump aides, showed Mr. Trump had been told he’d lost the election but nevertheless leaned on state officials, the Justice Department, his vice president and others to keep him in power — a campaign that resulted in the Jan. 6, 2021, riot.
The editors of the Wall Street Journal remark:
The House Jan. 6 committee decided Monday that the best way to cap its 18 months of work would be a political gesture. It thus referred President Trump to the Justice Department for potential criminal prosecution for his efforts to reverse the 2020 election, which culminated in the Capitol riot.
What is this supposed to accomplish? A Congressional referral to the Justice Department has all the legal force of an interoffice memo. Attorney General Merrick Garland has appointed special counsel Jack Smith to investigate Mr. Trump’s schemes to stay in office. The Jan. 6 committee’s loud public intervention makes his job more complicated, given the clear partisan context.
The House Jan. 6 inquiry has done useful work gathering documents and putting witnesses under oath. The wiser course was to let the established facts speak for themselves, while releasing full transcripts of its interviews to provide a complete public record.
concluding:
Jan. 6 was a disgrace, and Mr. Trump’s behavior on that day and since is a reason not to trust him with the Presidency ever again. But Justice must balance a decision to indict Mr. Trump with the risk of setting a momentous precedent: prosecuting a former President running against a current President.
The proof to support such a charge would have to be undeniable, with a legal theory straightforward enough to convince most of the country, including most Republicans. Otherwise it could cleave the country in two, and it might even help Mr. Trump in rallying supporters to his defense. Indicting a former President would also take the scourge of criminalizing political differences to new heights. Democrats would surely be future targets.
I think the Department of Justice would be prudent to demur from indicting President Trump. Since the events of January 6, 2020 I have maintained that President Trump should be prosecuted to the full extent of the law but that many would be disappointed at how limited that extent is. IMO we need a constitutional amendment to address this particular set of facts. There are both common law and case law arguments that a president cannot be charged with crimes for actions taken while in office. There are also separation of powers arguments. Consider, too, that the Department of Justice is subordinate to the president. A sitting president indicting his predecessor for crimes in office will open a Pandora’s box of problems we might well wish to avoid. Gerald Ford saved us from that eventuality in the aftermath of the Watergate incident and it probably cost him re-election. I doubt that any future president will escape being indicted for something if he should happen to be succeeded by a president of a different party.