The House committee investigating the Jan. 6, 2021, incursion into the U.S. Capitol should be wary about making an official “criminal referral” of former President Donald Trump to the Justice Department.
Unless the criminal guilt of Trump is so undeniable that failure to make such a referral would be a clear dereliction of duty, the committee should let the facts in its upcoming report speak for themselves without overkill. Democratic Rep. Zoe Lofgren of California told the New York Times that a criminal referral would be superfluous, and she’s probably right. A criminal referral also would provide Trump multiple avenues to turn matters to his own political benefit in a way that a straightforward presentation of facts, unadorned by accusatory but debatable conclusions, might not.
None of which is to say that Trump committed no crimes or that there isn’t enough evidence of crimes for the Justice Department at least to open a criminal investigation. Not having yet seen what the committee has seen, the general public is in no position to judge that right now, either way. It is to say, though, that the Justice Department is perfectly capable of taking facts unearthed by Congress and deciding for itself, without Congress’s direction, whether a criminal probe is warranted.
The potential pitfalls for a criminal referral are substantial. Trump, of course, will play the victim no matter what the committee does, but his ability to feign victimhood would grow almost exponentially if an overwhelmingly Democratic group of elected officials looks eager to put him in federal prison. Any hint of political bloodlust from Democrats, rather than a sober and irrefutable statement of facts, plays into Trump’s hands.
Moreover, a criminal referral raises the stakes. If Congress makes such a referral and then, for whatever reason, the Justice Department chooses not to indict Trump (and thus risk a trial becoming a circus), Trump would immediately and falsely yell from the rooftops that he had been “totally exonerated.” Any transgressions of normative (rather than legal) ethics made by Trump, no matter how otherwise damning, would be ignored in the wake of another escape from legal jeopardy.
Furthermore, as indicated above, any criminal trial of Trump would inevitably become a circus of the worst kind. That assessment gets quadrupled if such a trial results from a largely partisan Democratic referral. Granted, Trump should not be above the law, but the prospect of civil unrest does exist if such a prosecution commences. Congress has a responsibility to make prudential political decisions about whether the reward is worth such a risk — especially because the Justice Department is perfectly free to decide to prosecute with or without a prod from Congress.
For reference, I write this as someone who thought both impeachments of Trump were entirely warranted and that Senate convictions would have been appropriate. And I think that what Trump did and continues doing to undermine faith in the 2020 election, and what he did to catalyze a mob to help him try overturning it, was and is inexcusable.
Yet, while the first word from the following quote isn’t applicable now, the logic behind it is. Back in 1990, in Louisiana, Republican U.S. Senate candidate Ben Bagert tried to convince the media not to make that year’s Senate race all about the candidacy of the attention-hogging former Klan leader David Duke.
“Don’t make a maggot into a martyr,” Bagert said.
Likewise, Congress should not give Trump the means to turn himself from a pariah into a political phoenix.
