The congressional committee investigating the Jan. 6 attack on the U.S. Capitol now has enough evidence to answer a historically significant question: Should it refer former President Donald Trump to the Justice Department for criminal prosecution for his role in the insurrection that very nearly halted the peaceful transfer of power?
The answer is yes. The gravity of the accusations against the former president and the evidence being amassed are such that failing to do so would send a strong message that fear and intimidation to escape consequences will work even at the highest levels of American government.
Rep. Liz Cheney, one of only two Republicans on the committee, said recently: “It’s actually clear that what President Trump was dealing with — what a number of people around him were doing — that they knew it was awful, that they did it anyway. … I think what we have seen is a massive and well-organized and well-planned effort that used multiple tools to try to overturn an election.”
In late March, a federal judge ordered lawyer John Eastman to relinquish hundreds of emails to the committee, stating that the former president appeared to have committed multiple felonies in his push to hold onto the presidency after his defeat.
“Based on the evidence the court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the joint session of Congress on January 6, 2021,” U.S. District Judge David Carter wrote. It was Eastman who concocted the illegal scheme that would have had then-Vice President Mike Pence stop the electoral count and the certification of Biden’ victory. I think what we have seen is a massive and well-organized and well-planned effort that used multiple tools to try to overturn an election.Rep. Liz Cheney, R-Wyoming
The committee, in its filing in that case, said that Trump, Eastman and others “entered into an agreement to defraud the United States,” interfering with the election certification process, spreading misinformation about election fraud and pressuring state and federal officials to support their claims.
Trump, the committee said in its filing, “corruptly” pressured Vice President Mike Pence to stop the electoral vote count as part of an illegal scheme to allow key states to send a different slate of Trump-friendly electors who might change the outcome. Failing that, the committee said, Trump then embarked on a “wide-scale campaign to convince the public and federal judges that the 2020 election was fraudulent.”
Slowly, painstakingly, despite immense political obstacles, this committee has managed to do what few might have thought possible at the outset. It has obtained information from key figures in the White House. It has gotten testimony from Trump’s daughter and senior adviser, Ivanka; from her husband, Jared Kushner; from senior adviser Stephen Miller; from Marc Short, chief of staff to then-Vice President Pence; and more than 800 others.
To do all that work, to gather all that evidence and then fail to recommend the ringleader and object of it all does a disservice to that work and to the American people. And yet, there have been reports that the committee is divided on whether to make the referral. One committee member, Rep. Zoe Lofgren, D-Calif., has said that such a letter wouldn’t “have any legal impact.” After those reports came out, Lofgren said in an interview with National Public Radio that the committee has had no discussion of whether to issue such a referral. When pressed, Lofgren said that “at some point we very well may.”
There are other concerns at work here, according to news reports. Those include fears that a criminal referral will make the work of the committee appear partisan. Others think Carter’s ruling should do the heavy lifting, that the ruling will better persuade Attorney General Merrick Garland to pursue prosecution.
The committee must know that no matter what the outcome, Trump and his allies have decided from the outset that this is a partisan witch hunt. No matter that Cheney, a strong Republican voice, is on the panel. No matter that the evidence shows otherwise. Just as with Trump’s false narrative about the election, he has shown that he is indifferent to facts and truth.
That should not stop this committee from doing its duty. If it has the evidence — and it appears it does — it must send the referral. This is far more than a symbolic gesture, as Lofgren has said. This is about a committee having the courage to act on its convictions and on the immense amount of work that has gone before. It must add its voice to that of Judge Carter, not hide behind him.
