The game is afoot now

Last month the January 6th Committee leaked to the media that it was looking to make a criminal referral against Donald Trump to the Department of Justice on charges ranging from obstruction of Congress to wire fraud. It was a fairly clear attempt on the committee’s part at letting Attorney General Merrick Garland know that if his DOJ wasn’t already planning to bring such a case, it was going to try to pressure him into it.

But then Garland gave his big January 6th anniversary speech yesterday, and he made it rather clear that the DOJ intends to bring criminal cases against the biggest of fish in relation to the January 6th attack. In other words, if enough evidence ends up being there to go after the likes of Trump and obtain a conviction at trial, such cases will happen.

This sets up a whole new landscape. If the point of the January 6th Committee making a criminal referral against Donald Trump is to pressure the DOJ into indicting him based on overwhelming evidence, and it turns out the DOJ is going to indict him anyway if the evidence is there, then the committee doesn’t necessarily have a reason to make a formal criminal referral.

In fact one could argue that in such case the committee might be better off simply letting the DOJ simply use the evidence presented during the upcoming public hearings as the basis for its case, and not make a formal criminal referral against Trump. That way Trump wouldn’t be able to argue that any resulting DOJ criminal charges were “at the request” of the Democratic Party-controlled January 6th Committee.

  

There are now a number of moving parts here. The committee’s decision on whether to make a formal criminal referral against Trump, or to simply make its case and let the DOJ make its own charging decision, will largely come down to whether the committee trusts that Merrick Garland’s DOJ will indeed make its own decision to indict Trump. That in turn could come down to whether the committee and the DOJ are coordinating their efforts on any level. We’ll see. But at least now we know that Garland’s intent is to bring January 6th criminal cases as high up the chain as the evidence ends up calling for – and that’s half the battle.

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