Legal experts split on whether House Jan. 6 Committee criminal referrals against Trump will result in DOJ indictments

The hyperpartisan House Committee to investigate the Jan. 6 Capitol riot that was hand-selected by outgoing House Speaker Nancy Pelosi (D-CA) finally did on Monday what it was so obviously created to do more than a year ago — recommend criminal charges against former President Donald Trump.

However, the question of whether the Justice Department will actually follow through on those recommendations with actual indictments against Trump remains to be seen, and legal experts appear to be split on the most likely outcome, the Daily Wire reported.

For what it is worth, the Democrat-dominated Trump-hating House committee recommended four separate criminal charges on Monday: Obstruction of official proceedings; Conspiracy to defraud the United States; Conspiracy to make false statements; and Inciting an insurrection or rebellion — conviction of which would presumably disqualify Trump from ever holding any elected or appointed office again.

Committee failed to prove criminal action by Trump

According to George Washington University law professor Jonathan Turley, the committee fell well short of adequately proving that Trump was guilty of violating those four federal criminal charges.

The committee had focused on Trump’s alleged failure to act to call off the rioters or rapidly mobilize and bolster the law enforcement response, but Turley noted Monday in a brief thread of tweets that “Building a case on the failure to act is a very challenging prospect for prosecutors who need to satisfy elements of a crime. The promise in the last hearing to produce new direct action failed to materialize.”

He added, “It is important for the Committee to share evidence of action rather than inaction showing criminal acts by Trump. Most of us viewed this as a disgraceful attack on our constitutional process, but criminal charges require proof of intent and other elements.”

Turley had more thoughts on the matter Tuesday morning, and wrote in a pair of tweets, “The Committee repackaged largely the same evidence. That is not enough. Indeed, the reliance on a new videotape of former Trump aide Hope Hicks seems a case of putting ‘hope over experience’ in the criminal Justice system … While still based largely on the failure to act, Adam Schiff insisted that ‘if that’s not criminal, nothing is.’ The opposite may be true from a First Amendment perspective. If the failure to act is criminal, it may be harder to see what would not [be] criminal under this standard,” he added.

Committee’s recommendations could backfire, bolster Trump’s defense

Writing for National Review, former federal prosecutor Andrew McCarthy also appeared to take a dim view of the prospects for the committee’s “pointless” recommendations to actually result in actual criminal indictments against former President Trump.

He dismissed out of hand the incitement to insurrection charge given that the committee failed to show “a criminally actionable nexus between Trump and the violence,” not to mention the fact that, unlike the committee, prosecutors would be required to disclose “exculpatory evidence,” such as Trump’s multiple calls for “peaceful protests.”

McCarthy noted that “when there is exculpatory evidence that negates a core element of a crime, the Justice Department does not indict the case in the first place. It’s not that the DOJ wouldn’t love to charge Trump with a violent crime; it’s that the DOJ doesn’t want the egg of acquittal on its face.”

As for the other three recommended charges, he said those “referrals fare no better,” and explained in turn how each was based on thin reeds of alleged criminal actions by people in Trump’s orbit that, while distasteful, may not necessarily be criminal. If anything, McCarthy surmised, the referrals may actually help Trump by bolstering his oft-repeated claim that he had been vindictively targeted by purely partisan political maneuvers.

DOJ may act on committee’s demand for “accountability”

There is at least one legal expert who thinks the committee’s recommended criminal charges might actually lead to indictments, according to The Conversation — Santa Clara University law professor Margaret Russell.

“I think it makes a strong argument in the public sphere for the prosecution of Trump, which is what a lot of people have been waiting for,” Russell said of the committee’s referrals. “It doesn’t guarantee a prosecution, but it spells out, I think meticulously, why Trump is included in this and at the forefront.”

“The House committee’s message of accountability — that if the nation is to consider itself to be a democracy that works there must be accountability for Trump and others — was made very powerfully,” she added. “As committee member Adam Schiff said on Dec. 19, ‘I think the day we start giving passes to presidents or former presidents or people of power or influence is the day we can say that this was the beginning of the end of our democracy.'”

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