Has the January 6 Committee accomplished its mission? Well, that depends on what its mission is. Or, more accurately, what its different members’ objectives are.
The nominally bipartisan panel — two of whose nine members are Republicans, selected by Democratic leadership over Republican leadership’s objections — is unanimously anti-Trump and single-minded in its determination to keep him at the front of our minds. Yet the members’ reasons for those positions ultimately diverge.
I have maintained for months that the committee, without saying so, is conducting the impeachment investigation the Democrat-controlled House failed to conduct 18 months ago.
The Capitol riot occurred late in Donald Trump’s term. Any possibility of removing him from office disappeared when the House weirdly took a week off rather than reconvening for immediate impeachment proceedings on Jan. 7. Had lawmakers treated Trump’s role in the riot as a true national emergency, such that he needed to be removed forthwith, a hastily drawn impeachment article would have been justifiable. This would have obviated the dubious legal rationalization on which Senate Republicans relied in acquitting Trump — that the Constitution bars an impeachment trial for a non-incumbent president.
Instead, the House dawdled, and then failed to conduct an impeachment investigation, drawing up a slapdash impeachment article that did not match the scope of Trump’s malfeasance. It merely served the Democrats’ partisan agenda of labeling Trump supporters as “insurrectionists.”
The committee is trying now to make up for the House’s dereliction. But it lacks legitimacy. Under the guise of a legislative purpose to get to the bottom of the riot, it is investigating whether Trump committed crimes — an executive function. Legislative committees have no business conducting themselves like prosecutors or grand juries … unless they are probing high crimes and misdemeanors for impeachment purposes.
The committee has amassed a solid case that Trump should have been impeached and removed for various derelictions of duty and betrayals of his constitutional oath to execute the laws faithfully. Those aren’t criminal violations, but impeachment does not require proof of penal offenses. It is triggered by political offenses against the body politic because the point is to divest power, not to imprison.
Alas, Trump’s impeachability was already established 18 months ago. There is no broad public consensus in support of impeaching him yet again at this point. Consequently, for zealous anti-Trumpers, the proxy for impeachment is criminal prosecution.
Has the committee proved indictable crimes? Such an assessment is at once difficult and irrelevant.
It is difficult to evaluate because the highly partisan panel does not honor due process. The panel is producing a one-sided narrative, rather than a trustworthy investigative report developed by adversarial hearings and cross-examination. Nevertheless, a partisan and biased congressional committee’s views on prosecution are irrelevant because the Justice Department does not rely on them. The decision whether to indict will be based on the judgment of professional prosecutors, weighing evidence the committee may have either missed or ignored in its made-for-TV presentation.
In exercising its broad charging discretion, the Justice Department considers not only whether it can prove a statutory offense beyond a reasonable doubt, but whether such a prosecution would be in the interests of justice. There are a number of potential crimes under investigation. To my mind, our default position should always be against law enforcement intrusion into electoral politics. The bright line for prosecutorial discretion, therefore, should be violence.
Under the First Amendment, we give a wide berth to provocative, demagogic, and even anti-American speech. This is conveniently overlooked by those who urge Trump’s prosecution for obstruction of Congress or defrauding the United States based on non-violent advocacy — to wit, frivolous legal theories of (a) election fraud without supporting evidence, and (b) constitutional law — the notion that the vice president had authority to block Congress’s counting of state-certified electoral votes.
We can and should condemn the Trump campaign’s “stop the steal” antics, and Trump’s urging of Vice President Mike Pence and congressional Republicans to object to the counting of electoral votes in pivotal states. Nevertheless, in cost/benefit terms, it would be a grave error to charge this misconduct criminally. Doing so would target political speech while installing the Justice Department as our election monitor. This would be ruinous overkill given that — contrary to the committee’s hyperbole — Trump’s half-baked schemes had no chance of success. Far from being pushed to the brink, our Constitution easily prevailed.
On the other hand, charges would be justified if the Justice Department could prove that Trump willfully abetted a violent attack on the Capitol, as opposed to engaging in reckless speech and then being not terribly upset when violence foreseeably erupted. Politically-motivated uses of force cannot be tolerated if we are to have domestic tranquility and peaceful transitions of power. In its hearings, the committee fell short of proving that Trump conspired in the use of force. It is telling, moreover, that the Justice Department has not accused him of doing so, despite charging over 800 people in connection with the riot. Prosecutors should stay their hand unless they have strong proof of Trump’s personal, clear intent to resort to violence.
Finally, with impeachment a non-starter and prosecution a dubious prospect, we return to the committee’s objective to convince the nation of Trump’s unfitness for the presidency. The why here is intriguing, for it is the one place where the committee divides along partisan lines.
Democrats calculate that Trump cannot win a national election but could win the Republican nomination. Their best shot at retaining the White House in 2024, despite Biden’s train wreck of a presidency, would be for Trump to run again. In fact, if they can goad him into announcing his candidacy early, it might even help them mitigate expected 2022 midterm losses. Make no mistake: Committee Democrats realize that their vendetta against Trump fuels the anger of the Trump base. They want him in the race. This would clear the field of Republicans who would be much tougher to beat; then Democrats would use the committee’s evidence to clobber Trump in and Republicans in 2024.
To the contrary, Rep. Liz Cheney (R-Wyo.) is trying to convince Republicans that nominating Trump would be a death wish. As the committee’s most effective member, she has never deviated from her goal of breaking the party away from the former president. The price of this crusade probably will be Cheney’s congressional seat — she is way behind in the polls, with the GOP primary approaching. Yet she is winning the long game. Though it has been an inchingly gradual process, polls indicate Republicans, in increasing numbers, have become weary of Trump’s self-absorption and vindictive melodramas, have no interest in his obsession to relitigate the 2020 election, and would like to see new party leadership.
Put aside impeachment and prosecution. Despite its manifest flaws, the January 6 Committee has made great strides in its main objective: to render Trump a spent political force.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.