No Referral Necessary

One of the great debates going on in progressive circles is whether the 1/6 Committee should make a criminal referral to the Justice Department with Donald Trump as its subject. As the title indicates I have some definite thoughts on that and justifications colored by the political reality in today’s America. I’d like to present some of them below and invite you to come along.


Without further ado my answer is No. Despite the fact that in my opinion, and that of many others, the Committee to date has provided more than ample evidence that Trump committed and/or was complicit in several crimes I think a criminal referral is unnecessary and could in fact prove to be counterproductive. As of this writing the Committee has made no such referral and we have every reason to believe that the pile of evidence will only get larger and will implicate Trump in several more crimes. That begs the question: Why would I be against a referral?

It’s difficult to pick a starting point but I’ll begin with the evidence speaks for itself. We know that AG Merrick Garland and much, if not all, of his senior staff is paying attention. We also know they are taking it seriously because they have asked the Committee for material.

Garland is by nature cautious and doesn’t want to appear to have been influenced or driven to an action/decision. A criminal referral from the Committee would only have him reexamining his own thoughts wondering if he was influenced.

While the Committee is bipartisan there is no denying that it is skewed Democratic and Trump has made enemies of the two Republicans on it. He has driven Adam Kinzinger out of Congress and Liz Cheney is fighting for her political life in a primary in a state where her family was “Republican royalty”. (I’m not writing Cheney off just yet but this is interesting to say the least.) The right wing would portray any referral as a partisan witch hunt. Why give them a lie on a golden platter?

Another factor the public is overlooking – led by a eyeball and ear seeking press – is the Committee’s original charge. It has nothing to do with criminal prosecutions (which I feel will be a natural and proper outgrowth of their investigations). Their job is to find out what happened, why it happened, what loopholes were exploited and make legislative recommendations to plug them so this never happens again. We can’t put the toothpaste back in the tube but we can prevent a repetition.

I’m increasingly confident that Trump will get his legal comeuppance. If it is not from Garland’s Justice Department it will be from New York AG Tish James, Fulton County DA Fani Willis or some combination of the three. And this will happen without a criminal referral from the Committee to Justice.

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