Our democracy is sleepwalking toward catastrophe. It is the task of the House select committee investigating the Jan. 6 Capitol attack — and the coup attempt it was part of — to awaken us all to the dangers confronting our republic.
Worry about what might or might not look “political” is itself a political consideration that should not impede equal justice under the law. If a president is not above the law, a defeated former president isn’t, either.
A central lesson from the ambiguous end of special counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 elections is that both the Jan. 6 committee and the Justice Department must be explicit about any crimes they determine Trump committed and take appropriate action. Otherwise, Trump and his minions will loudly claim exoneration, even in the face of revealed facts to the contrary.
This is why the Jan. 6 committee should not be reluctant to make a criminal referral to the Justice Department if it concludes that Trump broke the law. Yes, there is legitimate debate about this. Especially if Garland is already moving toward an indictment, some committee members worry that a referral might make legal action look — that word again — political.
Here again, however, concerns about appearances should not get in the way of directness. As one committee member, Rep. Elaine Luria (D-Va.), has put it: “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.”
The committee deserves praise for its painstaking thoroughness. But its decision not to hold a major public hearing this year until it finished investigative work has allowed people’s attention to drift away from the ongoing threat to our democracy.
Trump’s lieutenants continue to use wacky legal theories to try to decertify President Biden’s election. Their litigation may be hopeless, but it reflects a determination to undermine the electoral system over the long run.
“This is the clearest and most present danger to our democracy,” J. Michael Luttig, a conservative lawyer and former appeals court judge, told the New York Times, which reported this week on decertification efforts. “Trump and his supporters in Congress and in the states are preparing now to lay the groundwork to overturn the election in 2024 were Trump, or his designee, to lose the vote for the presidency.”
With the Jan. 6 committee expected to hold hearings soon — in May or early June — it is urgent that its members deliver a clear and compelling account of what Trump did and why it matters.
“Every piece of evidence that Trump committed a crime should be at the forefront of these hearings,” said Fred Wertheimer, who is part of the Not Above the Law Coalition, which is dedicated to holding Trump accountable. “And it should be made clear that this is the first coup attempt in American history designed to overturn a presidential election result.”
The committee has already signaled that it has the goods. As Rep. Liz Cheney (R-Wyo.), the panel’s vice chair, told CNN’s Jake Tapper this month: “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.” It was, she said, “a massive and well-organized and well-planned effort that used multiple tools to try to overturn an election.”
Litigation over the committee’s subpoena of Trump legal adviser John Eastman led to a remarkable ruling last month by a federal district judge asserting that Trump “more likely than not” sought to disrupt a government proceeding, which is a crime. Trump, Judge David O. Carter ruled, “likely knew” that his voter fraud justification “was baseless, and therefore that the entire plan was unlawful.”
As for Garland, his methodical approach to the events of Jan. 6, 2021, has subjected him to unfair criticism. He has been right to take care with an explosive case. Because Garland has so studiously avoided grandstanding, any move the Justice Department makes against Trump will have exceptional credibility.
But going forward, Garland cannot allow an understandable uneasiness over prosecuting the incumbent president’s leading political opponent to compromise his obligation to enforce the law and protect U.S. institutions from violent coup efforts.
It was Senate Minority Leader Mitch McConnell (R-Ky.) who said, in reference to Trump, that “former presidents are not immune from being held accountable.” The Jan. 6 committee should make Trump’s law-breaking clear. Garland should act. And McConnell should stand by his words.