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21 December 2022

Why the 6 January committee’s decision on Donald Trump matters

The referral of the former president to the US justice department on criminal charges sets an important precedent.

By Emily Tamkin

WASHINGTON DC – After seven months of public hearings, the House of Representatives’ 6 January committee voted on Monday (19 December) to recommend that the US justice department pursues criminal charges against the former president Donald Trump for his attempt to overturn the 2020 election. Among the charges the committee is encouraging the department to consider are conspiracy to defraud the federal government and inciting or assisting an insurrection.

This makes Trump the first president to have been formally referred by Congress for potential prosecution. As Seth Masket, a professor of political science at the University of Denver, put it, “All the actors in this are essentially treading new ground here.” This is an unprecedented moment in American history and politics. 

The committee was only able to recommend charges, not to actually charge the president.

As Paul Musgrave, assistant professor of political science at the University of Massachusetts Amherst, told me, “the fact that this is a referral to the executive branch signals that the Congress is unable to take action against a threat to the Congress. We knew that already after the failed [second] impeachment.” It’s telling, he added, that after all that Trump has done, the biggest consequence so far has been a criminal referral.

It is also not yet clear whether the justice department and the attorney general Merrick Garland will follow the committee’s recommendation. An indictment would be “politically controversial”, conceded Allan Lichtman, distinguished professor of US history at American University, to the New Statesman in an email. Though he also wrote, “I have no inside information, but I believe that the evidence is sufficiently compelling, from what is publicly known, that DOJ [the Department of Justice] cannot fail to indict on least some charges.”

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The great challenge that this committee faced was that, even with all of the care it took to appear above partisan politics – and it was, in fact, bipartisan, with the Republican Liz Cheney serving as the committee’s vice-chair – there are “inescapably political dimensions of that judgement”, wrote Musgrave. Since the committee “is only technically bipartisan, and certainly not beloved by most Republicans in office or in the electorate, that judgement doesn’t seem impartial”.  

“Regardless of how above board it is,” agreed Masket, “Trump and his allies will call this a partisan attack.” Trump, who is running for president in 2024, is framing this as a Democrat-led attempt to stop his return to the White House, and blasted the committee in a statement released to the press as nothing more than a “kangaroo court”. Though Trump’s support among Republicans has been sinking in recent months, the recommendation from the committee on its own isn’t likely to turn his supporter base against him. 

Yet, while carrying no legal weight, it is politically significant that this committee decided to recommend charges anyway. That this is unprecedented means that it is, in fact, setting a precedent. Presidents have historically been permitted significant legal leeway and latitude (the same could perhaps be said of Trump himself). But “there’s a certain level in which that itself creates a bad precedent or moral hazard… that you can avoid prosecution by being president”, explained Masket.  

While Trump is a unique figure in many ways, and it’s unlikely that this exact scenario will play out again, it is not impossible. It has happened. That means it can happen again.

“The eyes of the world are upon them. The eyes of history are upon them,” said Masket. “There are points at which the justice system can’t turn a blind eye and needs to treat the president as a citizen bound by laws.” 

[See also: What the US midterm results mean for Joe Biden]

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