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Opinion The Jan. 6 report will draw blood even if Trump faces no charges

Supporters of President Donald Trump attack Capitol police on Jan. 6, 2021. (Victor J. Blue/Bloomberg)
4 min

It was the biggest surprise of the midterms: Bucking widespread skepticism, the House committee examining President Donald Trump’s role in the Jan. 6, 2021, insurrection made the cause of democracy matter to voters. Its revelations surely encouraged the defeat of numerous MAGA election-deniers, helping protect our political system against future subversion.

Now, with the panel holding its last meeting Monday in advance of the release of its final report, it appears prepared to attempt another, similar feat: making a public case that Trump committed crimes. Rep. Jamie B. Raskin (D-Md.) announced that the committee will recommend that Trump face several criminal charges, including insurrection.

Will this influence the Justice Department’s ultimate decision on whether to charge Trump? Probably not. And many will argue that this renders the move unnecessary or purely theatrical.

But that’s the wrong way to look at the committee’s work.

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This move communicates to the public that the committee — which has examined the insurrection more deeply than anyone — believes the Justice Department should investigate whether Trump committed specific crimes. When people deride hearings as “political theater,” that’s automatically understood as a “showboating waste of time.” But successful hearings, even theatrical ones, are also acts of communication with the people. And in this case, that’s especially important.

Rep. Adam Schiff (D-Calif.) illustrated why in a CNN interview on Sunday. He was asked about reports that the committee will vote on whether to refer three charges: insurrection, obstruction of Congress’s electoral count and conspiracy to defraud the U.S. government.

“I think that the evidence is there that Donald Trump committed criminal offenses,” Schiff said. On the charge of insurrection, Schiff added: “If you look at Donald Trump’s acts, and you match them up against the statute, it’s a pretty good match.”

Federal prosecutors are investigating Trump’s Jan. 6-related conduct in some fashion. Because their activities are properly secret, the public cannot know what’s being investigated in real time. But the committee can frame the public’s understanding of what ought to be happening, ultimately equipping the people to evaluate the department’s handling of the whole affair.

At bottom, Schiff is saying that Trump’s conduct should be measured against the insurrection statute. If the committee refers that charge, it will alert the public in a new way, formally declaring that the Justice Department should determine whether Trump gave “aid or comfort” to rioters carrying out a “rebellion or insurrection against the authority of the United States.” Conviction would also disqualify Trump from holding future office.

“Insurrection” would be challenging to prove, but hardly impossible. As law professor Albert Alschuler explained at Just Security, it would entail showing that Trump gave comfort to the rioters by actively refusing numerous entreaties — from Republicans and even his own advisers — to call on them to stand down while the violence raged.

It would also rely on highlighting Trump’s 2:24 p.m. tweet alerting the rioters to his vice president’s failure to subvert his loss. This essentially directed the mob to target Mike Pence, to the point where he and his security detail feared for their lives. The question would be whether that constituted lending aid or comfort to an insurrection.

Now that the committee has confirmed it will recommend the charge of insurrection, it will alert the public to the idea that Trump didn’t merely exercise what he thought were his legal options and inadvertently stray into corrupt conduct. Instead, Trump actively plotted to subvert our political order, and weaponized the mob to complete the coup after his premeditated procedural corruption failed.

Such an indication, paired with a detailed explanation of why the committee is making it, has inherent value. It primes people so they aren’t all that shocked if the department does take the extraordinary step of bringing charges against an ex-president who is running again.

“It’s speaking directly to the public,” Josh Chafetz, a Georgetown legal scholar who has written about the communicative role that Congress plays, told me. “It’s saying, ‘DOJ should bring these charges. And don’t be surprised if and when it does, because we, too, think they’re warranted.’”

And if the Justice Department ultimately declines to bring any charges recommended by the committee, Chafetz adds, department officials “are going to have more explaining to do than they otherwise would have.”

A recommendation of the insurrection charge will do one other thing. It will place the committee on record behind the proposition that Trump’s conduct might have been so criminally heinous that it disqualifies him from ever holding office again.

The vast majority of Republican lawmakers might not want to make this declaration. But the committee’s Democrats — and its two Republicans — clearly do.