For the moment, I’ll pretend I am a prosecutor in the Department of Justice and have been handed the Report of the Congressional Committee known as the Jan 6 Hearings. That committee has recommended prosecution of the former US president. Well, goody for them.
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The Fifth Amendment says: “No person shall be held to answer for a capital, or otherwise infamous crime unless on a presentment or indictment of a grand jury….”
Will the work of the Pelosi-Schiff committee suffice to meet that requirement? I suppose so. Members of Congress ought to be as capable as a 23-layperson grand jury to carry out an investigation, and decide if charging the person with crime is warranted.
Deciding To Prosecute or Not
Anyway, I, as Prosecutor, am not bound by Congress’s referral. I could drop the entire matter, I could gather a new grand jury, or I could now charge Donald Trump with one or more crimes. People will ask me to explain which of those three choices I make, so I better have something to say about the quality of the Committee’s report, its honesty, and whether I reckon it is a strictly political move by one Party against another.
Judging by the disproportion of Democrat reps chosen by Madam Speaker to participate in the hearings, it looks political. Also, on many occasions during the televised hearings, we heard committee members state as fact some things that are only opinions or speculation. As a prosecutor, I deduce that the demeaning tone used, when some witnesses spoke about Trump, was part of a smear. Granted, that does not automatically disqualify information provided by such a witness.
Ah, now that I’ve had a chance to study the referral a bit more, I am inclined to judge the report as unsuitable for use, or at least insufficiently complete for use as a substitute for a grand jury. The task of a grand jury is to decide if there is enough evidence to justify trying a suspect. The committee, led by Rep Adam Schiff of California, neglected to go down several crucial paths.
For example, they did not call Rep Pelosi to testify as to why she turned down Trump’s request for Congress to authorize National Guard assistance. No effort was expended on the question of who instructed the Capital Police at the door to let people in, almost with a welcome. They did not subpoena the media to testify how it made the mistake of saying five people were killed when it was only one. And did they ask for medical reports of policemen’s injuries?
Vitally, nothing was done to eliminate the possibility that some of the invaders were agents provocateurs whose mission was to create a scene that would incriminate Trump, or that would present to the people a tragic sign of the collapse of democracy.
As the prosecutor, I must attend carefully to the word “insurrection” that is being bandied about. Was there an insurrection that day? The law, which was passed in 1948, is codified at 18 USC 2383. It says:
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Before I would seek to learn who incited or engaged in rebellion or insurrection, I would have to find out if any rebellion or insurrection took place. At the moment, I am not being asked to prosecute anyone other than Donald Trump for this crime.
Incitement
If I find that he appears to have incited a rebellion or insurrection, i believe I would be able to charge him with incitement even if his hoped-for rebellion did not eventuate. In general, when someone is charged with conspiracy to commit a crime, there needs to be some action by one of the conspirators. The crime of incitement, however, is not a crime of conspiracy.
(Ah, I see that Congress refers Trump criminally for conspiracy also. Let us look at what evidence they have for this. He may have had conversations that are recorded, or he may have emailed someone with a plan for violence on Jan 6 that can be construed as conspiracy.)
In regard to incitement, Congress wants to make the case that Trump urged violence. There are videos of Trump at a microphone around 1pm on Jan6 telling the crowd that they should walk to the Capitol. So, since the potential charge is “incitement to rebellion” I need to know what manner of rebellion is implied?
Does Trump mean a sort of moral/intellectual rebellion whereby folks just assemble en masse to show their judgement of condemnation of election theft? If so, I believe there is enough activity of that sort in America’s history that accepts such action as patriotic not criminal. Of course, if Trump meant that people should go in and HURT any occupant of the Capitol, that would qualify as incitement to rebellion.
There is precedent for labelling “treason” any physical attack on law enforcement personnel, dating back to the Whiskey Rebellion (a violent protest against a tax on whiskey) in Pennsylvania in 1792, but Congress does not recommend a charge of treason here. Rather the event of Jan 6 is to be seen as an “insurrection against the authority of the United States or the laws thereof.”
The Opening of the Ballots
But here the message is very muddled. It is being held that the protestors wanted to act against just one particular authoritative decision by the United States, namely that Joe Biden won the 2020 election. That is not the same as a rebellion to overthrow the government but rather to insist that A rather than B is the genuinely elected president. It happens; on at least one occasion in history the Catholic church had two conflicting popes!
Such a conflict needs to be sorted out itself. A case can be made that the voting, although it may have been false counted in six states, nevertheless passed legal muster, given that the rules of 15 USC 2 were followed. Six Congressmen stood up to challenge the count on the day it occurred AZ, GA, MI, NV, PA, WI. Only two of those had a senator co-signing so those went to both chambers for a vote.
The best one — regarding Pennsylvania — came back with 138 ayes (that is, to dump Pennsylvania’s 20 electoral ballots) to 282 nays in the House and only 7-92 in the Senate. The other — Arizona — worth 11 electoral ballots, resulted in121-303 in the House and 6-93 in the Senate.
Had all six challenges succeeded, 79 of the ballots for Biden would have been dropped, leaving him with 223 (instead of his 302) and Trump with the winning number of 232. (A win by 9 votes.)
What Did Trump Expect of Pence?
It appears that Trump had urged Vice President Pence to “do right by him” as the presider over the opening of the ballots. But there is no law allowing the vice president to do so. Trump is on record saying that “Pence didn’t have the courage.”
I agree that if Trump asked Pence to do something other than preside properly over the ballot opening ceremony, he, Trump, acted wrongly and foolishly. But that is not a crime. If, however, he planned for Pence to be beaten up — or even if instructed the invaders to scare Pence — that would be the crime of assault, at least. One would hope Trump’s supporters, after such a crime, would stop supporting him.
Unless other material comes to light to show that Trump did indeed instruct anyone to scare Pence or to perform any violence I, as prosecutor, will dismiss this part of the referral. Instead, I will belatedly open a criminal investigation into the 2020 election, to whatever extent there is authority in the Doj’s portfolio to do so.
I can also examine whether the Jan 6, 2021 invasion of the Capitol was a set-up, by persons other than Trump. The melee has harmed America’s reputation and harmed the American people’s faith in their nation. By increasing Americans’ inter-Party hostility, it tends to block good legislation. It distracts greatly from more pressing concerns.
Many of the participants need to be punished, if they were there as part of a set-up. Any who were wrongly punished thus far should be compensated. The fact that any were kept in solitary confinement looks like dressing up the story to make it all seem worse than it was.
If Adam Schiff, or any other members of Congress’ “select committee” took part in deceit, they can be expelled now by a 2/3 vote in their own chamber, per Article I, section 5 of the Constitution. Liz Chenery is already out of Congress. All of them could face criminal charges, as could any section of the FBI that committed violence while disguised as rioters.
We Americans are sick of being treated like playthings or subjects for psy-ops. Let the Jan 6 fandangle stand as the Grand Finale of that sort of nonsense.
Amen.
