What to Make of the January 6 Committee‘s Criminal Referrals by J.E. Dean

By now, those of us who have been following the House Select Committee on the January 6 Attack on the Capitol know that the Committee made four criminal referrals to the Justice Department based on its finding that Donald Trump committed serious crimes. The charges are obstruction of an official proceeding; conspiracy to defraud the U.S.; conspiracy to make a false statement; and insurrection. Those are serious charges, but what do the Committee’s referrals mean?

I will defer to other, more knowledgeable sources to explain how the findings of the Committee fit with each of the four crimes Trump and others are accused of committing. Involved are Trump’s “Big Lie;” his claim that he won the election when he knew that he hadn’t; his lying to state and other officials to persuade them to take actions to set aside the 2020 vote; his efforts to prevent the certification of President Biden’s electoral victory by preventing the electoral college votes from being counted; and, of course, organizing and encouraging the insurrection at the Capitol.

Only the Department of Justice can indict Trump for these alleged federal crimes. The burden of proof necessary for the DOJ to indict Trump is higher than that used by the Committee in making its criminal referrals. And the burden of proof necessary to convict Trump is still higher. That is why some legal experts question whether Trump will be indicted and even more question whether he will be convicted.

Some pundits, especially those of a conservative bent, claim that the Committee’s criminal referrals will serve as proof of the political nature of the charges. Trump himself, in a post on social media, wrote, “These folks do not get it that when they come after me, people who love freedom rally around me. It strengthens me. What doesn’t kill me makes me stronger.”  Are they right? I don’t think so. 

The January 6 Committee has presented a compelling case that felonies were committed and that one man, Trump, was the cause of the entire January 6 nightmare. That is why you are unlikely to see a point-by-point rebuttal of the evidence the January 6 Committee found.

Evidence that Trump’s legal situation, already dire, worsened is clear by how he reacted to the Committee’s decision. One Trump social media post quotes Friedreich Nietzsche, one of Adolf Hitler’s favorite philosophers. In suggesting the criminal referral will “strengthen” himself, Trump is positioning himself as an “uber mensch,” a superman. 

Trump’s post also reflects his continuing delusion that “the people who love freedom” will continue to rally around him as the evidence of his crimes grows. And what do you think the reference to those “people” rallying around him is meant to convey? 

Have you read Trump’s other reactions to the referrals? Here are two:

“The Fake charges made by the highly partisan Unselect Committee of January 6th have already been submitted, prosecuted, and tried in the form of Impeachment Hoax # 2. I WON convincingly. Double Jeopardy anyone!”  Trump does not understand the difference between an impeachment and a criminal proceeding. 

Trump also wrote: “The people understand that the Democratic Bureau of Investigation, the DBI, are out to keep me from running for president because they know I’ll win and that this whole business of prosecuting me is just like impeachment was — a partisan attempt to sideline me and the Republican Party.”  

My read of the immediate reaction to the criminal referrals and Trump’s reaction to them is that they will not re-energize the Trump mob or convince anyone else to start seeing Trump as a victim. Proud Boys and Oath Keepers, among others, have been sobered up by some of their members going to jail for the January 2021 visit to Washington. 

And many of Trump’s “people” are looking for the door as his behavior becomes more bizarre—anyone want a $99 digital image of Trump dressed as a superhero—and other evidence of unethical business practices. Even Trump’s favorite daughter is walking away. (I understand that she and Jared did not buy any of the Trump NFTs.)

So, will the DOJ indict Trump? The Committee’s actions will increase pressure on the special counsel, Jack Smith, not that more pressure is needed. Smith is likely to act against Trump in the near future. The more you read about Smith, the more obvious it is that Trump has compelling cause to worry. 

Trump is likely to be convicted, but that’s speculation. I will read the 1000+ pages of the Committee’s final report during the upcoming holiday. It will not raise my holiday cheer, but I am happy that Donald J. Trump will soon get the present he so richly deserves. 

Happy Holidays to Spy readers. I wish you and your family a joyous holiday. 

J.E. Dean is a retired attorney and public affairs consultant writing on politics, government, birds, and other subjects