Byron York’s Daily Memo: It’s Jan. 6 week 

IT’S JAN. 6 WEEK. Thursday marks the one-year anniversary of the Capitol riot. Speaker Nancy Pelosi and House Democrats are planning a series of events to observe the occasion. President Joe Biden will make a speech. Former President Donald Trump will hold a news conference. And the media will talk about it all week.

But the biggest thing going at the moment is the House Jan. 6 committee. Above all, the House Democrats who created the committee want to use it to get Trump — either by ensuring that he is legally prohibited from running for president in 2024 or, failing that, by damaging him so much politically that he will lose if he does manage to run.

How to do that? With their first impeachment of Trump in late 2019 and early 2020, some Democrats explicitly expressed the hope that he would be so tainted by impeachment that he could not win reelection. Then, after Trump did indeed lose in November 2020, followed by his refusal to accept the election result, and then by the Capitol riot, they hoped a second impeachment would result in him being barred from ever holding public office again.

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It didn’t happen. Trump remains, at the moment, the leading potential candidate in a 2024 Republican presidential primary. And that is where the Jan. 6 committee comes in.

Committee members, Democrats plus Pelosi-picked Republican allies Liz Cheney and Adam Kinzinger, are looking for a reason to call for criminal charges against Trump. At the moment, they seem to be focusing on Trump’s decision to wait until after 4:00 p.m. on the day of the riot — 4:17 p.m. exactly — to post a video calling for the rioters to stand down and go home.

“The violence unfolded that afternoon,” Cheney said last month. “But for 187 minutes, President Trump refused to act.” The 187 minutes, which Cheney refers to frequently, is apparently the three hours and seven minutes between the portion of Trump’s speech in which he called for his supporters to “peacefully” protest at the Capitol and the 4:17 p.m. video telling them to leave. During that period, contrary to Cheney’s assertion, Trump tweeted twice — once, at 2:38 p.m., saying, “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” and then, at 3:13 p.m., saying, “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order — respect the Law and our great men and women in Blue. Thank you!” Finally, at 4:17 p.m., Trump posted a video telling the rioters, “You have to go home now. We have to have peace. We have to have law and order.”

Cheney does not count the tweets — at the time perhaps Trump’s main mode of communication — in her “187 minutes” formulation. Instead, she says Trump’s failure to immediately call more forcefully for a restoration of order amounts to a “dereliction of duty” that might be punishable by law and used to disqualify Trump from holding office again.

“He could have told them to stand down,” Cheney said of Trump on ABC Sunday. “He could have told them to go home — and he failed to do so. It’s hard to imagine a more significant and more serious dereliction of duty than that.”

Cheney noted that some members of Congress, Trump aides, and even the president’s family were urging him to make a televised statement. “Any man who would not do so … is clearly unfit for future office, clearly can never be anywhere near the Oval Office again,” she said.

Was Cheney just expressing an opinion or outlining a legal strategy? That was the question behind the question when ABC’s George Stephanopoulos asked, “Is his failure to make that statement criminal negligence?”

“I think that there are … potential criminal statutes at issue here,” Cheney answered, “but I think that there’s absolutely no question that it was a dereliction of duty. And I think one of the things the committee needs to look at as we’re looking at a legislative purpose is whether we need enhanced penalties for that kind of dereliction of duty.”

Look at Cheney’s words carefully. What is she getting at? Here is one view of the situation, after speaking to some Republican-leaning legal and constitutional experts:

Dereliction of duty is not a crime. Trump cannot be indicted for dereliction of duty. It is, rather, something Congress could have impeached Trump for — but that did not happen. The second Trump impeachment rested on a single article, accusing him of inciting the Capitol riot.

So how could the Jan. 6 committee, as Cheney suggests, seek “enhanced penalties” for “that kind of dereliction of duty”? Certainly not for a nonexistent crime. And also, the Constitution bars Congress from passing criminal laws that apply retroactively; lawmakers cannot turn a past act, which was legal at the time, into a punishable criminal act. Congress also cannot retroactively increase the penalty for an actual crime. And one more thing: Congress cannot pass a law to punish a single individual, even if that single individual is a former president of the United States.

On top of all that, the Jan. 6 committee is not a criminal investigation. Congress does not have that authority. The Justice Department does. As a congressional oversight committee, the Jan. 6 panel is required to have a “legislative purpose,” that is, it must be conducting oversight for the purpose of informing and crafting legislation for Congress to consider. That’s why Cheney mentioned the “legislative purpose” of creating “enhanced penalties” for “dereliction of duty,” even though that appears legally impossible. It made it look as if the committee is actually pursuing some sort of legislative reform when it in fact is targeting Trump.

One thing the committee, and the House as a whole, can do is draft a criminal referral — that is, collect evidence and send it to the Justice Department with the recommendation that it be investigated. That is why Cheney mentioned “potential criminal statutes.” The committee is clearly looking for evidence that Trump might have violated a law, which it could then ask Justice to prosecute.

For example, if the Justice Department charges people around Trump, or Jan. 6 rally organizers, with conspiracy, it might then allege that Trump was an active part of that conspiracy and charge him with that. So far, we have not seen any evidence to support a case like that, certainly not from the Jan. 6 committee. And to get back to the “legislative purpose” of the committee — there is no way that, even if a conspiracy were charged, Congress could create “enhanced penalties” on past conduct that would bar Trump from holding office again.

Beyond the Jan. 6 committee, anti-Trump forces are looking at other ways to keep him off the 2024 ballot. The most significant is the 14th Amendment, which prohibits anyone who has “engaged in an insurrection or rebellion against [the United States], or given aid or comfort to the enemies thereof” from holding public office. (Passed after the Civil War, it was originally intended to apply to former Confederate officials.) To take any action under the 14th Amendment, Congress would first have to establish that the events of Jan. 6 constituted an “insurrection or rebellion” against the United States government. And then that Trump actively engaged in the insurrection, too. And then, such a judgment would have to stand up in court.

Will Democrats pursue it? Unclear. But at the very least, they appear to be planning to use the 14th Amendment against some Republican members of Congress. Recently, Marc Elias — the Democratic lawyer behind the Steele dossier dirty trick in the 2016 election — tweeted this: “My prediction for 2022: Before the midterm election, we will have a serious discussion about whether individual Republican House Members are disqualified by Section 3 of the 14th Amendment from serving in Congress. We may even see litigation.” Elias attached the text of the “insurrection or rebellion” portion of the amendment.

You can count on Elias to follow through. After all, his party reaped enormous political benefits from the dossier caper, and he is always looking for new ways, legitimate or not, to roil the system in favor of Democrats.

None of this is to defend Trump’s actions on Jan. 6. In the weeks leading up to that day, he whipped up supporters to believe the election had been stolen. He refused to concede, even after his many legal challenges to individual state results failed. Then, when some of those supporters stormed the Capitol, he should have immediately told them to stop and go home, right that moment. For many people, Trump’s actions in the weeks after the Nov. 3, 2020, election were shameful and disqualified him from again serving as president of the United States.

But that is a political judgment. Democrats will only harm their cause if they attempt to make up some crime or misuse the Constitution in an effort to legally bar Trump from holding office. The voters can do that all by themselves.

Nevertheless, the one-year anniversary of Jan. 6 finds Democrats, both on the Jan. 6 committee and beyond, determined to keep the fight alive. And even though their anti-Trump schemes seem unlikely to work in a legal sense, with the help of a sympathetic media, they will continue to focus attention on Jan. 6 throughout 2022.

The final question: What about November’s elections? Voters are deeply concerned about the economy, about inflation, about COVID, about crime, about education, about President Joe Biden’s competence, and other issues that are becoming increasingly difficult for Democrats. Some in the party seem to know that fixating on last year, and on a former president, might not be the best way to address those concerns. Last month, Politico reported that Democrats “hoped the [January 6 committee] would wrap up its work this spring, leaving the party plenty of time before the midterms to pivot its focus to kitchen-table issues that resonate with voters.” That is not going to happen.

So yes, this is Jan. 6 week. But if some Democrats have their way, every week of 2022 will be Jan. 6 week. And then voters will have their say.

For a deeper dive into many of the topics covered in the Daily Memo, please listen to my podcast, The Byron York Show — available on the Ricochet Audio Network and everywhere else podcasts can be found. You can use this link to subscribe.