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It’s important for a democracy not to waver on the rule of law
The 6 January panel of the US that concluded its work recently represents a third and possibly final chance for the US Congress to establish a historical record of Donald Trump’s wrongdoing while president
The 6 January panel of the US that concluded its work recently represents a third and possibly final chance for the US Congress to establish a historical record of Donald Trump’s wrongdoing while president. The first two opportunities were the first and second impeachment efforts. The House of Representatives did its job both times by impeaching Trump. The Senate, however, failed its constitutional role by declining to convict Trump either time, despite substantial evidence he committed high crimes and misdemeanours. Those didn’t need to be crimes described in US statute books. Now the House committee has turned to the legally different question of whether Trump committed statutory crimes. After a real investigation that gathered evidence from more than a million documents and a thousand witnesses, the panel took the unprecedented step of referring a former president to the Department of Justice for criminal prosecution. It recommended criminal charges against Trump for obstructing an official proceeding of Congress (i.e., the counting of the electoral votes); for conspiracy to defraud the US by denying election results; conspiracy to make a false statement; and for inciting, assisting or providing aid and comfort to an insurrection.
These recommendations are correct. The vote-counting on 6 January was an official proceeding of Congress, and it is a crime to interfere in one. Notwithstanding arguments in lower courts about whether the Sarbanes-Oxley Act should apply beyond the context of altering documents, its text covers the interference on 6 January.
Trump’s pattern of trying to get parts of the government to lie about there being election fraud itself constituted fraud against the US. In fact, it would be hard to imagine a bigger fraud on the government. The false statement charge derives from Trump’s plan to submit fake electors in various states. Again, the conduct fits the criminal prohibition. Finally, the 6 January attack on the US Capitol was an insurrection. There is enough evidence to charge Trump in court with inciting it. To be sure, a court would have to apply First Amendment analysis to see if Trump intended to incite and if his words were likely to incite imminently. That’s what courts are for.
But the panel provided enough evidence to conclude that Trump should be charged criminally for interfering with the American electoral process and trying to block a peaceful transition of power. We’ve known about this evidence, but it’s important that a US government body has marshalled it into the form of a formal accusation. Trump evidently sought to break US democracy. A candidate who loses an election must concede the race peacefully; nothing is more important to the democratic process than this. The consequences of Trump’s conduct were thus profoundly threatening to democracy. The referral puts the House on the right side of history. Declining to refer Trump to the DoJ would have amounted to a dereliction of duty.
Yet it’s important also to acknowledge that this referral is mostly symbolic. Jack Smith, the special prosecutor appointed by Attorney General Merrick Garland, will not be influenced meaningfully by the referral. On one hand, the referral could complicate Smith’s decision on whether to prosecute Trump. No doubt the House committee’s recommendation will be used by Trump supporters to argue that any subsequent criminal prosecution is partisan. Smith’s charge is to make any prosecution as purely non-partisan and objective as possible, to restore public trust in a DoJ that came under pressure from Trump to politicize its investigative and prosecutorial decisions. On the other hand, if the panel had not referred Trump for criminal prosecution, Trump’s defenders would have said that Smith must not be more aggressive than a partisan House committee. Seen in terms of this dual problem, the recommendation can be seen for what is: an accurate historical assertion by an important body.
If Smith decides not to bring criminal charges against Trump, the 6 January report will probably end up as the final word from the federal government about what went wrong that day. It won’t on its own stop Trump from being re-elected. But may function as another component of the gradual process of convincing Republican moderates that Trump is unfit for high office That realization could make Republicans move on to other candidates like Florida governor Ron DeSantis.
One can hope that DeSantis’s rational self-interest will guide him away from Trump-like behaviour. If Trump fades and does not win again, the panel’s referral will have had some role in it. In the end, that should be the highest priority for anyone who cares about democratic elections. The only way to preserve democracy is to abide by the rule of law.
Noah Feldman is the Felix Frankfurter professor of law at Harvard Law School
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First Published:21 Dec 2022, 10:10 PM IST
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