Over the weekend, the New York Times reported, Jan. 6 Panel Has Evidence for Criminal Referral of Trump, but Splits on Sending:
The leaders of the House committee investigating the Capitol attack have grown divided over whether to make a criminal referral to the Justice Department of former President Donald J. Trump, even though they have concluded that they have enough evidence to do so, people involved in the discussions said.
The debate centers on whether making a referral — a largely symbolic act — would backfire by politically tainting the Justice Department’s expanding investigation into the Jan. 6 assault and what led up to it.
Hold on there, not so fast know-it-alls. The vice chair of the January 6 Committee, Liz Cheney, says you boys are jumping the gun.
Talking Points Memo reports, Cheney Denies Reported Dispute Within Jan. 6 Committee Over Trump Criminal Referral:
Rep. Liz Cheney (R-WY), vice chair of the Jan. 6 Select Committee, on Sunday denied there is a dispute among members of the panel over whether to issue a criminal referral for former President Trump.
So there you have it, know-it-alls, straight from the horses mouth, so to speak.
Earlier Sunday, the New York Times reported that leaders of the committee are divided over making a criminal referral of Trump to the Justice Department, despite the panel having concluded that it has enough evidence to proceed with the referral. Some members of the committee are reportedly concerned that such a referral could potentially politicize the Justice Department’s investigation into Jan. 6.
During an interview on CNN, Cheney said that the committee has not made a decision about referrals, but she thinks “that it is absolutely the case.”
“It’s absolutely clear that what President Trump was doing, what a number of people around him were doing, that they knew it was unlawful,” Cheney said. “They did it anyway.”
Asked about the Times’ report during an interview, Cheney rejected the notion of a dispute within the committee over a criminal referral of Trump.
“The committee is working in a really collaborative way to discuss these issues, as we are with all of the issues we’re addressing,” Cheney said. “And we will continue to work together to do so. So I wouldn’t characterize there as being a dispute on the committee.”
Cheney added that she views the panel, which is made up of seven Democrats and two Republicans, as “the single most collaborative committee” she has ever served on.
“I’m very proud of the bipartisan way in which we’re operating,” Cheney said. “And I’m confident that we will work to come to agreement on all of the issues that we’re facing.”
Last month, the committee alleged in a court filing that the former president and his allies “engaged in a criminal conspiracy to defraud the United States.” Lawyers for the committee wrote that Trump and key allies engaged in criminal acts in trying to pressure former Vice President Pence to overturn the results of the 2020 election.
Based upon the pleadings and evidence submitted in that case, U.S. District Judge David Carter found that Trump probably broke the law in an effort to obstruct Jan. 6 proceedings, judge says:
A federal judge presiding over a civil suit involving the House committee investigating the riot at the U.S. Capitol found Monday that then-President Donald Trump “likely attempted to obstruct the joint session of Congress” on Jan. 6, 2021, which would be a crime.
“The illegality of the plan was obvious,” U.S. District Judge David Carter wrote of Trump and lawyer John Eastman’s plan to have then-Vice President Mike Pence determine the results of the 2020 election.
“Every American — and certainly the president of the United States — knows that in a democracy, leaders are elected, not installed. With a plan this ‘BOLD,’ President Trump knowingly tried to subvert this fundamental principle. Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the joint session of Congress on January 6, 2021,” Carter wrote in U.S. District Court for Central California, ordering emails that Eastman wrote furthering the plan to be turned over to the Jan. 6 committee.
Late last month, The Times reported that DOJ investigators looking into the events of Jan. 6 are expanding their scope beyond Capitol insurrectionists. Investigators are reportedly looking at the planning for the “Stop the Steal” rally that preceded the insurrection; figures in executive and legislative branches involved in any pre-insurrection rallies or who attempted to “obstruct, influence, impede or delay” Congress’ Jan. 6 certification of the election results; and an unsuccessful plot to push slates of fake electors by some Trump allies.
But as I previously posted, there is no public facing evidence that the DOJ is actually investigating Donald Trump and his inner circle of Coup Plotters. The January 6 Committee And Federal Judges Beg AG Merrick Garland To Act Against The January 6 Coup Plotters (excerpt):
Just days after these rebukes from the January 6 Committee and Judge Carter, the New York Times runs a report sourced to the Department of Justice, once again seeking to reassure us, “don’t believe your lying eyes, we really are working on it.”
Given the suspicious timing of this reporting, color me skeptical. If the Coup Plotters were actually being called to testify in front of a grand jury, their corrupt GQP lawyers would be singing to Fox News propagandists every night, and the Coup Plotters (grifters) would be sending out fundraising emails to the MAGA/QAnon cult to shake them down for their legal defense fund. This is not happening, so there is no public facing evidence of an actual DOJ investigation of the Coup Plotters.
If there is no DOJ criminal investigation of Trump, then a criminal referral of Trump by the January 6 Committee cannot interfere with a nonexistent investigation that only The Times and unnamed sources in the DOJ want us to believe is occuring.
Despite concluding that they have enough evidence to refer Mr. Trump for obstructing a congressional proceeding and conspiring to defraud the American people, some on the committee [see below] are questioning whether there is any need to make a referral. The Justice Department appears to be ramping up a wide-ranging investigation, and making a referral could saddle a criminal case with further partisan baggage at a time when Mr. Trump is openly flirting with running again in 2024.
Check out the way in which these NY Times reporters selectively edit what Liz Cheney had to say in response to their reporting in her CNN interview:
The committee’s vice chairwoman, Representative Liz Cheney, said on CNN on Sunday that the committee had not reached a final decision about making referrals and downplayed any divisions on the committee, but acknowledged there was significant evidence of criminality.
“I think that it is absolutely the case, it’s absolutely clear that what President Trump was doing, what a number of people around him were doing, that they knew it was unlawful. They did it anyway,” said Ms. Cheney, a Wyoming Republican.
Notice how these NY Times reporters left out Cheney’s denial of the thrust of their reporting that there is a dispute within the committee over making a criminal referral of Trump? Yeah, that wouldn’t look good.
According to this Times report, based upon unnamed sources:
The shift in committee leaders’ perspective on making a referral was prompted in part by a ruling two weeks ago by Judge David O. Carter of the Federal District Court for Central California. Deciding a civil case in which the committee had sought access to more than 100 emails written by John C. Eastman, a lawyer who advised Mr. Trump on efforts to derail certification of the Electoral College outcome, Judge Carter found that it was “more likely than not” that Mr. Trump and Mr. Eastman had committed federal crimes.
The ruling led some committee and staff members to argue that even though they felt they had amassed enough evidence to justify calling for a prosecution, the judge’s decision would carry far greater weight with Mr. Garland than any referral letter they could write, according to people with knowledge of the conversations.
The members and aides who were reluctant to support a referral contended that making one would create the appearance that Mr. Garland was investigating Mr. Trump at the behest of a Democratic Congress and that if the committee could avoid that perception it should, the people said.
Even if the final report does not include a specific referral letter to Mr. Garland, the findings would still provide federal prosecutors with the evidence the committee uncovered — including some that has not yet become public — that could be used as a road map for any prosecution, the people said.
“If you read his decision, I think it’s quite telling,” Representative Zoe Lofgren, Democrat of California and a member of the committee, said of Judge Carter’s ruling. “He and we have reviewed a huge amount of documents, and he reached a conclusion that he outlined in very stark terms.”
Ms. Lofgren is among those who believe a referral letter to the Justice Department is superfluous, since it would carry no legal weight.
“Maybe we will, maybe we won’t,” she said of a referral. “It doesn’t have a legal impact.”
But the question about whether to send the referral has, for one of the first times since the committee was formed in July, exposed differences among members.
Liz Cheney disputes this characterization.
Representative Elaine Luria, Democrat of Virginia and a member of the panel, said that the committee should still send a referral for any crimes it uncovers.
“I would say that I don’t agree with what some of my colleagues have said about this,” Ms. Luria said on MSNBC this month. “I think it’s a lot more important to do what’s right than it is to worry about the political ramifications. This committee, our purpose is legislative and oversight, but if in the course of our investigation we find that criminal activity has occurred, I think it’s our responsibility to refer that to the Department of Justice.”
Ms. Cheney portrayed any divisions as minor [this is how they acknowledge her denial?] and said the panel would work collaboratively and reach a consensus agreement.
“I’m confident we will work to come to agreement,” she said.
Although staff members have been in discussions about a referral, and some have debated the matter publicly, the committee members have not sat down together to discuss whether to proceed with a referral, several lawmakers said.
So the sourcing for this report is anonymous staff members. When these reporters cash in some day in the future with their New York Times best seller book about the inner workings of the January 6 Committee, only then may we learn the identities of who said what to whom. Monetizing news reporting for books is becoming a real problem with the Beltway media.
Representative Pete Aguilar, Democrat of California, said the committee was likely to hold off on making a final determination until investigators finished their work. He said the panel was “finishing up” its investigative phase and shifting to a more “public facing” one in which the panel will present its findings.
“The members haven’t had those conversations,” Mr. Aguilar said of a meeting to discuss a potential referral. “Right now, we’re gathering the material that we need. As the investigative phase winds down, we’ll have more conversations about what the report looks like. But we’re not presupposing where that’s going to go before we get a little further with the interviews.”
Although the committee has the ability to subpoena testimony and documents and make referrals to the Justice Department for prosecutions, it has no criminal prosecution powers.
* * *
In validating the committee’s position, legal experts said, judge Carter made it difficult for the Justice Department to avoid an investigation. Mr. Garland has given no public indication of the department’s intentions other than to say that it will follow the facts and the law. But subpoenas issued by a federal grand jury indicate that prosecutors are gathering information about a wide array of issues, including about efforts to obstruct the election certification by people in the Trump White House and in Congress.
Investigators from the House committee and the Justice Department have not been sharing information, except to avoid conflicts around the scheduling of certain witnesses.
“We want them to move faster, but we respect their work,” Mr. Aguilar said, adding that the committee has a different goal than the Justice Department’s inquiry: to fully investigate what led to the riot, which injured more than 150 police officers, and take legislative steps to prevent a repeat. “It’s an insult to the lives of the Capitol Police officers if we don’t pursue what happened and take meaningful and concrete steps to ensure that it doesn’t happen again.”
Aside from the question of whether to make a referral about Mr. Trump, the committee has moved aggressively to use the Justice Department to ensure that witnesses cooperate with its investigation. The committee has made criminal referrals against four Trump White House officials for their refusal to sit for questioning or hand over documents, accusing them of contempt of Congress. But the Justice Department has charged only one — Stephen K. Bannon — frustrating the committee.
Those frustrations played out in public at a hearing this month, when Ms. Lofgren said: “This committee is doing its job. The Department of Justice needs to do theirs.”
Ms. Lofgren said she had not planned to make the remarks, but as she sat on the dais during the hearing, she decided to veer from her planned remarks because the department’s slowness in addressing the contempt referrals ate at her.
“Some of us did express some frustration. I’m among them,” she said. “Honestly, I hadn’t planned to say that. It wasn’t my script. It wasn’t there. But I thought, you know, this is frustrating. I just decided to say it.”
Trying to pressure the Justice Department to prosecute a contempt of Congress charge is more appropriate than other criminal referrals, Ms. Lofgren argued.
“It’s different than doing a referral generally for prosecution,” she said. “When you’re the victim of a crime, there is some weight to that. And when you are the victim of criminal contempt, as the committee is, you’re the victim. And so I think there was some stature to that.”
The committee is preparing to hold public hearings in May and June, and to make a final report in September.
After interviewing more than 800 witnesses — including more than a dozen Trump White House officials — the panel has another 100 interviews lined up, including some witnesses it wants to bring in a second time. Among those scheduled to testify soon is Stephen Miller, a former White House adviser to Mr. Trump, who the committee says helped spread false claims of voter fraud in the election and encouraged state legislatures to appoint alternate slates of electors in an effort to invalidate Joseph R. Biden Jr.’s victory.
Mr. Miller has sued to block the committee from gaining access to his phone records, arguing in part that the panel was invading his parents’ privacy since he was on their family plan.
The committee is still deciding whether to call some key witnesses, including Mr. Trump, Vice President Mike Pence and Virginia Thomas, the wife of Justice Clarence Thomas, who urged Mark Meadows, the White House chief of staff at the time, to work to keep Mr. Trump in office.
“We have completed a substantial amount of work,” Ms. Lofgren said. “We’re going to accomplish — we hope — what we set out to do, which is to tell the entire story of what happened, the events of the 6th and the events that led up to the day.”
The real question is what, if anything, is the Department of Justice doing to investigate the principal Coup Plotters at the top of the seditious conspiracy pyramid, including Donald Trump. Most legal experts outside of the DOJ believe that they have already seen enough in public reports to support an indictment. So what is taking “Merrick the Mild” so long to make a decision about indicting?
Time is of the essence, General, and you are almost out if time.
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Jennifer Rubin writes, “We don’t know much about the DOJ’s Jan. 6 inquiry. Here are 4 things we do know.”, https://www.washingtonpost.com/opinions/2022/04/10/doj-justice-department-investigation-jan-6-donald-trump-prosecution/
A favorite activity among pundits these days is trying to figure out what is happening — or not happening — with the Justice Department’s Jan. 6 investigation. This administration is particularly tight-lipped, so the most people can do is speculate.
Still, based on publicly available information, there are at least four conclusions we can draw with confidence.
First, the criticism that the Justice Department has decided not to go after defeated former president Donald Trump is, from all appearances, false. The department continues to reaffirm it has not ruled out going after anyone. A grand jury, the New York Times reports, is already “asking for records about people who organized or spoke at several pro-Trump rallies after the election,” including two events before Jan. 6. It is also seeking “records about anyone who provided security at those events and about those who were deemed to be ‘V.I.P. attendees.’ ” The grand jury has also requested evidence “about any members of the executive and legislative branches who may have taken part in planning or executing the rallies, or tried to ‘obstruct, influence, impede or delay’ the certification of the presidential election.” Ostensibly, that would include Trump and former vice president Mike Pence.
The Post has also similarly reported that the Justice Department is investigating the conspiracy to stop Congress from certifying Joe Biden’s election victory. Again, there is no sign that Trump or any senior official has been excluded. [There is also no sign that Trump or any senior official is being invetigated.]
Second, none of this means that the Justice Department is acting with a sufficient sense of urgency. The rationale that the feds have to start at the bottom and work their way up — as though this were a Mafia case — makes no sense.
Prosecutors go after foot soldiers if they have no real proof the kingpin has engaged in criminal activity. But the former president has shouted from the rooftops that he wanted Pence to overturn the election. And there is an audio recording of Trump trying to twist the Georgia secretary of state’s arm to find just enough votes to flip his state’s results. Former senior advisers have written books, blabbed in TV interviews and testified before the Jan. 6 committee concerning communications with Trump and other senior advisers.
Prosecutors have no reason to disregard all that evidence and focus exclusively on the violence on Jan. 6, thereby putting off investigating Trump and his inner circle for months. Either the Justice Department is deliberately slowing down the train, or it has decided to wait for the House select committee investigating the Capitol insurrection to finish its work. In either event, only the most politically naive lawyer would fail to appreciate the danger that comes with delay, given the potential destruction of evidence and opportunity for witnesses to coordinate their stories.
Third, there is one investigation of which the Justice Department is properly deferring to a state prosecutor. Fani Willis, the district attorney in Fulton County, Ga., has impaneled a grand jury to investigate Trump’s pressure campaign against secretary of state Brad Raffensperger to manipulate the Georgia’s vote totals.
The Justice Department’s prosecutorial manual plainly states: “In determining whether prosecution should be declined because the person is subject to effective prosecution in another jurisdiction, the attorney for the government should weigh all relevant considerations.” Those factors include “The strength of the other jurisdiction’s interest in prosecution; the other jurisdiction’s ability and willingness to prosecute effectively; and the probable sentence or other consequences if the person is convicted in the other jurisdiction.”
Willis should be seeking from the Justice Department and Jan. 6 committee all relevant evidence, which is almost certainly far more extensive than she currently has (e.g., interviews with the U.S. attorney in Georgia, Byung “BJay” Pak, who resigned two days after the infamous call between Trump and Raffensperger, and other testimony regarding pressure on the Justice Department to declare the election fraudulent). It is appropriate to allow Willis to take a crack at the case, but the department should also render assistance so she can gather evidence and, if facts warrant, make a powerful case against Trump.
Finally, it doesn’t really matter whether the Jan. 6 committee makes a “referral” to the Justice Department suggesting criminal prosecution. A referral, although the media and lawmakers have made much ado about it, would have no real legal significance, especially because the Justice Department is already well along in its investigation.
That said, public hearings in prime time laying out a powerful case against Trump and a written report summarizing those findings followed by a referral may convey to the public the gravity of the matter. It may also force the Justice Department to explain itself if it decides not to prosecute.
In sum, Attorney General Merrick Garland seems to be conducting a full investigation that could implicate Trump for, among other things, conspiracy to disrupt an official proceeding, conspiracy to defraud the United States or seditious conspiracy. Someone would be wise to point out to Garland the dangers of unnecessary delay. As publicly available information and daily revelations from Trump’s inner circle accumulates, Americans have every right to expect the former president’s prosecution in a timely fashion — or a darn good reason why the Justice Department won’t pursue him.
Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW) and a former federal corruption prosecutor writes, “Time for Merrick Garland to act: Trump can’t get a pass on serious crimes over ‘politics'” https://www.salon.com/2022/04/06/shouldnt-get-a-pass/
Donald Trump should not be given a pass for committing serious crimes just because he used to be president and has a major political operation still backing him.
Last week, a federal judge found that Trump more likely than not committed felonies, through his systematic efforts to overturn the 2020 election, including the crimes of obstructing an official proceeding and conspiracy to defraud the United States. That finding adds to many developments that point toward the need for Attorney General Merrick Garland to seriously consider whether to prosecute Trump.
Trump’s congressional and political allies have begun to preemptively make the case against the Department of Justice charging him with these and other crimes. They argue that any prosecution of Trump will immediately be dismissed by Americans as political and illegitimate, and some have even begun to intimate that such charges will result in turn in congressional investigations and eventually indictments of Democrats when Republicans regain control.
These arguments are without merit and bad for democracy. Garland must tune them out and make the right call on the facts and the law.
A federal court relied on extensive factual evidence provided by the House committee investigating the Jan. 6 attack to back up its finding of likely Trump crimes, and we can expect much more evidence — and more damning analysis — to come from that committee. That will put pressure on the Justice Department to seriously investigate the former president for potential crimes and, if the facts and the law support it, to prosecute him.
Trump’s allies understand this, and they are looking to preempt Garland from even starting down this road, but all they have are bad faith arguments. Many have said things similar to Sen. Mike Braun’s statement that if there is a federal prosecution of Trump, “at least half the country would say it’s all politically motivated.”
Some have raised the prospect that charges would be met with congressional investigations, and perhaps eventually criminal charges, of Democrats. “I wonder if they’re ever going to file charges against Hillary Clinton for what she did after 2016,” Sen. Ron Johnson said recently. Hillary Clinton, of course, did not lead an effort to overturn the 2016 election, and certainly not one that led to a violent attack on the Capitol.
Of course it is essential in a democracy that our law enforcement agencies and justice system never be used for politics. An administration using investigators and prosecutors to protect a president’s friends and go after his enemies is what happens in authoritarian countries. It is what happens every day in Vladimir Putin’s Russia. That is why, as a former federal prosecutor, I was so outraged when Attorney General Bill Barr, at Trump’s public urging, interfered in unprecedented and grossly political ways to undermine the prosecutions of Trump allies Roger Stone and Michael Flynn and set up investigations that appeared designed to go after political enemies of Trump.
It is also why Attorney General Garland has likely been so cautious about any move toward investigating Trump. Garland is working hard to restore the internal morale and external integrity of the Justice Department and understands that a prosecution of Trump, regardless of its obvious merits, could be criticized as political.
But appropriate caution does not mean giving a pass for criminality and anti-democratic abuses. My organization, Citizens for Responsibility and Ethics in Washington, has documented 48 credible allegations of criminal violations by Donald Trump while serving as or running for president. Forty-eight.
Some of those potential offenses stem from Trump illegally withholding military aid from Ukraine, in an attempt to extort President Volodymyr Zelenskyy into helping Trump politically by launching a phony investigation of Joe Biden and his family members. Others involve Trump’s efforts to misuse the government to help overturn an election that he lost and to incite a violent crowd to prevent Vice President Mike Pence from certifying the election. The crimes also include destroying records and obstructing justice.
The sheer scope of Trump’s likely criminality is unprecedented, as is its severity. It is hard to conceive of more serious crimes that a president could be involved in than illegally acting to interfere with the peaceful transfer of power, which is the cornerstone of a successful democracy. Investigating and seriously weighing prosecution would not be political under these conditions.
In fact, the failure to investigate and seriously consider prosecuting such egregious conduct would be inexplicable. Forgoing meritorious prosecutions for fear of political criticism is itself a political act, and one that would do grave damage to the republic. It would send the message that a president can do essentially anything without consequences. If Donald Trump regains the presidency, which he seems poised to try to do, he would most certainly heed this lesson and become still more brazen in illegal steps to consolidate his own power.
Indeed, it is the threat of retaliatory investigations and prosecutions — without anything resembling a similar set of well-developed facts and legal analyses to justify them — that is inherently and dangerously political. To say that any prosecution of Trump for real and supported charges would be met with manufactured charges against opponents is the very definition of misuse of the justice system for politics.
That is not what America is about. It is time to let the law and the facts lead and to ensure that abuses of democracy, regardless of who commits them, do not go unpunished.