Office Hours: Is there any way to push Garland to prosecute Trump?

Friends,

Bennie Thompson, chair of the January 6th Committee, has told reporters that the committee has no plans to make a criminal referral to the Justice Department. This strikes me as absurd. The major purpose of the committee’s carefully constructed prosecutorial brief is to clear the runway for indictments.

The pushback on Thompson’s statement was instant, beginning with vice chair Liz Cheney, who put out a statement flatly contradicting Thompson: “The January 6th Select Committee has not issued a conclusion regarding potential criminal referrals. We will announce a decision on that at an appropriate time.”

Thompson’s statement won’t influence the Justice Department. As every constitutional lawyer knows, it doesn’t take a criminal referral from Congress for the attorney general to proceed with an indictment. But what will it take?

After watching the second day of hearings, Susan (from our substack community) wrote on this page:

Let's hope AG Garland is paying very close attention. Whereas Ford's pardon put Nixons criminality to rest for the nation, he opened the door for the likes of Trump. It's time to prosecute, we can never allow this to happen again.

Susan raises the key issue, which is this week’s Office Hours question: What levers do we have to get Attorney General Merrick Garland to prosecute Trump?

Please comment below. (I’ll chime in as well.)

Friends, here are my two cents:

There's no way to push an attorney general to prosecute a case, and in our legal system there should not be. But I believe -- contrary to the view of the chair of the January 6 select committee -- that when the committee completes its work it should make a formal criminal referral to the Justice Department that spells out its findings in the clearest possible terms. If the facts lead the committee to conclude that Trump likely committed crimes against the United States, the committee should say so explicitly.

It is traditional for congressional committees to make criminal referrals when they think a crime may have been committed. Although the Justice Department is under no obligation to pursue these referrals, a criminal referral signals that the legislative branch of government finds or suspects a crime – an important symbolic act.

There are three arguments against the committee making such a criminal referral:

(1) It could backfire. Decisions about whether to prosecute must be made independently of politics: Garland and the Justice Department won’t want to be seen as doing the committee’s bidding. And the district and appellate courts that would handle Trump’s prosecution might take a dim view of any intermingling of the work of the political branch with the work of federal prosecutors.

(2) It’s unnecessary. Attorney General Merrick Garland has repeatedly pledged to follow the evidence wherever it leads, and he has said that he and his Jan. 6 prosecutors are closely watching the committee hearings.

(3) The committee has already, in effect, made a criminal referral to the Justice Department – arguing in a legal filing last fall (over whether it should be able to access emails from John Eastman, Trump’s attorney) that Trump broke multiple laws. In response, U.S. District Judge David O. Carter issued an opinion that said Trump “more likely than not” committed crimes to stay in power.

Notwithstanding these considerations, public opinion is crucial. Trump attempted a coup while president of the United States. As many Americans as possible should understand how dangerous and vile this act was. Yet at this point, a third of Americans (including some two-thirds of Republicans) still believe Trump’s big lie. For a bipartisan committee of Congress to conclude that Trump has likely committed such a crime would be significant. A criminal referral would garner big headlines. Even if it did not change the minds of die-hard Trumpers, it would be an important part of the historic record. And it would almost certainly increase public pressure on Garland to prosecute Trump -- or at least make public his reasons for not doing so.

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