Over the course of 18 months, the intrepid patriots on the House select committee investigating the January 6 insurrection tirelessly researched Donald Trump's efforts to overturn the results of the 2020 election through fraud, intimidation, harassment and violence. The committee's public hearings were an exercise in civic education, presenting the nation with a gripping, granular and truthful account of an unhinged president seeking to cling to power at all costs. Now they have gone one crucial step further. They have referred the matter to the justice department, urging that Trump be prosecuted.
Let us take stock of this astonishing moment. For the first time in American history, a congressional committee has recommended that a former president be criminally prosecuted - and not just for any crimes. The chief crimes at the heart of the referral - inciting insurrection, conspiracy to defraud the United States, and obstructing an official act of Congress - involve nothing short of an elaborate effort to frustrate and upend the peaceful transfer of presidential power, the bedrock of our constitutional democracy.
The referral powerfully reminds us that the assault on the Capitol was not a spontaneous spasm of violence. It was the culmination of a concerted effort to reject the results of a fair election, an effort that began on election day itself, when it became clear that Trump was headed to certain defeat.
In the run-up to January 6, Trump and his enablers - the committee also issued referrals for a clutch of lawyers including Trump advisers Rudy Giuliani and John Eastman and DoJ official Jeffrey Clark - sought to coerce state officials to falsify their election tallies, appoint illegal slates of false electors in key swing states carried by Biden, and turn the justice department into a megaphone for the big lie. When all else failed, Trump, having inflamed his most fervid supporters with wild conspiracy theories he knew to be false, summoned a mob and incited it to storm the Congress.
Whether the justice department will act on the committee's referrals is unclear. It is under no obligation to do so. And while the department, which is conducting its own parallel investigation of Trump that now also includes the stash of classified documents discovered in Mar-a-Lago, remained mum about the referrals, Mike Pence went on Fox to express the worry that charging Trump with crimes "would be terribly divisive in the country at a time when the American people want to see us heal".
Whether sincere or craven, Pence's expression of pious concern overlooks the inconvenient fact that the Republican party doesn't share an interest in healing. Representative Elise Stefanik of New York, who, as we recall, seized the spot as the No 3 House Republican after Liz Cheney's ouster, declared the referral a "partisan charade" and threatened to "hold House Democrats accountable for their illegitimate abuse of power".
More to the point, Pence fails to mention that the biggest obstacle to national healing remains his former boss. Trump is not like Richard Nixon after Watergate - a thoroughly discredited figure, shunned even by those in his own party. President Ford's controversial pardon of Nixon arguably contributed to political repair; granting Trump a pass from prosecution would serve only to reward his reckless attacks on constitutional democracy.
True, Trump appears diminished. His Midas political touch has deserted him. The midterms saw his hand-picked purveyors of the big lie lose big - and even, for the most part, concede their defeats. He has, of late, sounded ever more unmoored, calling for the "termination" of the constitution and increasingly trucking in QAnon conspiracy theories. He has shared his table with an antisemitic music star and a white supremacist Holocaust denier. Even his recently released "limited edition" digital trading cards are apparently losing value. And yet for all that, he remains, until someone proves otherwise, the most powerful force in the Republican party. And he seeks to recapture the presidency that he continues to insist was stolen from him.
To give this man a pass from prosecution simply because a trial would prove divisive is to admit that the rule of law in America has failed. Granted, a trial would predictably inflame Trump's base and elicit wild cries of execration from the likes of Marjorie Taylor Greene and Tucker Carlson, but those who predicted that the January 6 committee and the raid on Mar-a-Lago would also redound to Trump's favor have been proven wrong.
Trying a former president is not something to be celebrated. But nor is it to be shunned. Nearly a thousand insurrectionists have been charged with crimes associated with the storming of the Capitol. Hundreds have been convicted, including Oath Keeper leaders Stewart Rhodes and Kelly Meggs for seditious conspiracy. The January 6 committee got it right: it is time for a legal reckoning with the kingpin.
