I wouldn’t want to be a ketchup bottle at Mar-a-Lago today. Or a carpet at risk of being chewed by human teeth.
This is indeed an historic day, a gift to our threatened democracy. For the first time in the nation’s 233 years, Congress, via a select committee, has publicly concluded that a former president is a criminal – worse than a criminal: a violent insurrectionist against the U.S. government – and that he should be prosecuted by the Justice Department for “knowingly and willfully” breaking the law. Four different ways:
*18 USC 2383. “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” (Note, in particular, the last 12 words. Section 3 of the Constitution’s 14th amendment bars insurrectionists from public office.)
*18 USC 371. “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” (The Jan. 6 committee, in its criminal referrals today to the DOJ, found significant evidence that Donald Trump sought to impair “the lawful functions of the government by deceitful and dishonest means” when it moved to certify Joe Biden’s 2020 win.)
*18 USC 1001 says that anybody who “falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement” is guilty of a federal crime. (Trump blessed the scheme to gin up fake elector slates, in the desperate hope that key Biden states would certify the fakes instead of the real slates.)
*18 US 1512(C) says that anybody who “obstructs, influences, or impedes any official proceeding, or attempts to do so” is likewise guilty of a federal crime. (The “official proceeding” in question was the lawful and peaceful transfer of power, something that 44 previous presidents had honored.)
You’re probably thinking: That’s all fine and good, but does the soon-to-be-disbanded Jan. 6 Committee have any power to compel the Justice Department, and special counsel Jack Smith, to act on those historic criminal referrals?
Ah, nope. But don’t roll your eyes just yet. Today’s actions will draw some blood.
At minimum, these criminal referrals – reflecting what the committee calls the “gravity” and “severity” of the offenses – are symbolically weighty. They will buttress the ongoing criminal probes that special counsel Smith may well bring to fruition. They send the message that rioting ringleaders, not merely foot soldiers, will be exposed in the court of public opinion perhaps in the judicial realm.
They constitute a warning to future would-be insurrectionists, be they MAGAts or some mutations of MAGA, that they risk being held criminally accountable for lighting and fueling anti-democratic infernos. Backed by the committee’s imminent massive report, the referrals will help prepare most Americans (minus the MAGAts) for indictments – and put pressure on Smith, if he does not indict, to explain why the hell not. As former George W. Bush speechwriter David Frum said today, “The incitement of violence by the head of the government is not an infraction that can be dismissed and forgiven by any political system that hopes to stay constitutional…The time for justice has come.”
Lastly, the referrals underscore the truth of Trump’s toxic legacy: That he left office as a loser, then tripled down on losing and wound up branded a felon. For a textbook narcissist like Trump, that verdict of history arguably maims his eggshell ego more than the prospect of playing out his string as a criminal defendant.