The January 6 Committee Referral

 The "bi-partisan" January 6 Committee has now sent a criminal referral to the Justice Department alleging former President Trump violated four laws surrounding the events of January 6, 2021. The referral is non-binding meaning that the DOJ can conduct its own investigation of the charges, announce that no charges will be filed, or they can simply ignore it. 

Even given the fact that this is a politically biased Justice Department under Merrick Garland and his minions, in my view, there is no legal justification for indicting Trump in connection with the January 6 riot at the US Capitol.

The referral includes:

 Conspiracy to defraud the federal government; 

Obstruction of an official proceeding, in this case, Congress’ certification of electoral votes; 

Conspiracy to make a false statement

Inciting or assisting those in an insurrection.

While I agree with those who consider Trump's words and actions on January 6 to be reprehensible, I don't see how they are criminal. Trump believed and still believes that the election was stolen from him. Whether that is true or not, he has always had the Constitutional right to express that opinion.

As for his speech on January 6, he told the crowd to "march peacefully and patriotically to the Capitol..." That is exculpatory. Had he told them to actually invade the Capitol and stop Congress from certifying the election result, that would be a different story, but he did not do that.

The fact that he waited several hours to make any statement, and then told the rioters how much he loved them etc, but please go home is irrelevant. It was a horribly-worded statement, but it was not criminal.

Incitement is a difficult charge to prove. You must make a clear and direct link between what someone says and the resultant action. The fact that Trump expressed his view to the crowd that the election was fraudulent is not incitement in itself.

Personally, I don't think it was a good idea to hold the speech and the rally on January 6. There were indications already from the government's own intelligence sources that there might be trouble. That still doesn't make it incitement. In fact, in the days leading up to January 6, President Trump authorized the use of the National Guard, but Congress and the city of Washington DC failed to take the necessary steps.

So was there a failure of intelligence or a failure to act on good intelligence? Trump's detractors point out that this point is irrelevant and does not excuse those who rioted or those who may have incited them (Trump). That is true, but the National Guard authorization does go to Trump's defense to show that he did not want there to be any trouble or violence on January 6.  If he really wanted there to be a riot at the Capitol and Congress to be prevented from certifying the election, why would he authorize the use of the National Guard?

Lynn Cheney (R-WY) today stressed the fact that on that day, after it was reported that there were threats against Vice President Mike Pence, Trump tweeted that Pence had failed to do the right thing (in not stopping the certification). Did that place Pence in a more precarious situation? Of course. It was reprehensible for Trump to say it publicly especially given the timing. But was it criminal? Did it constitute incitement in the legal sense? I don't think so.

What I saw of CNN and MSNBC's coverage today struck me as to how cautiously the talking heads were responding to the news. Former FBI official Chuck Rosenberg pointed out that DOJ cannot be happy about all the witness/interviewee statements that are going to be released by the Committee to the public. This greatly complicates their own investigation since the publication of what witnesses told Congress could potentially affect what future witnesses may tell investigators. I am no fan of Mr Rosenberg, but he is correct.

It goes without saying that if Trump is actually prosecuted, it is going to tear the country apart. I believe everyone should be equal before the law-even former presidents. But as I see things now, if this Justice Department actually brings charges based on this referral, it will confirm my perception that it is a political arm of the Democrat party. I should stress here that I am not a lawyer, just a former federal agent. But even if they manage to bring a conviction before a jury in say, Washington DC, I don't see it standing in the appellate courts.