ChrisWeigant.com

Aid Or Comfort

[ Posted Monday, December 19th, 2022 – 17:19 UTC ]

Today Donald Trump was publicly accused of four serious crimes by a unanimous vote of the House Select Committee on January 6th. The committee made referrals to the Department of Justice, and the committee will release both their final report and voluminous amounts of evidence in two days. For now, they released their "executive summary" of what the final report is going to say. This is unprecedented territory, but then so much of Trump's political career would also fit that description, so it's hardly unusual for him.

The criminal referrals do not carry legal weight. They will not force the Justice Department to do anything. That is not the role of Congress, or any subsection of it. There are already multiple active investigations into Trump and his cronies by the Justice Department, complete with a special counsel coordinating them all. None of that will change, although the over 1,000 transcripts from witnesses the Select Committee releases may shed some light on these already-open investigations.

What I found most interesting about today's proceeding was the crimes the committee chose to include -- especially the final one. From their own visual presentations, here are the four crimes the committee accused Trump of committing:

Obstruction of an official proceeding
"...corruptly... obstructs, influences, or impedes any official proceeding, or attempts to do so..."

Conspiracy to defraud the United States
"...conspire either to commit any offense against the United States, or to defraud the United States..."

Conspiracy to make a false statement
"...in any matter within the jurisdiction of the... Government of the United States... makes any materially false, fictitious, or fraudulent statement..."

"Incite," "Assist" or "Aid or Comfort" an Insurrection
"...incites,... assists, or engages in any rebellion or insurrection... or gives aid or comfort thereto..."

All of these are taken from the text of the federal laws the committee is accusing Trump of breaking. But the language of that last one has much more profound consequences than all the others. Because it echoes language in the Constitution itself. Here is Section 3 of the Fourteenth Amendment (emphasis added):

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

If Donald Trump were found guilty of even giving aid or comfort to an insurrection, he would no longer be allowed to hold office. His name would not be allowed on any ballot, whether he goes to jail or not. If he were actually holding office, he would be ejected from that office. So while the rest of the charges are serious and could come with heavy sentences, its the last one that truly matters to the rest of us.

This has already happened (in recent times) at least once -- a judge has already disallowed a person who had participated in the January 6th insurrection at the U.S. Capitol from serving in public office. The legal theory is sound, in other words. It's pretty simple, at its heart: if you try to overthrow the government, you won't be allowed to be a part of any government anywhere in this country for the rest of your life -- unless two-thirds of Congress votes to let you in anyway. The amendment was put in place after the Civil War, for obvious reasons.

However, we are less than two years away from the next presidential election, and Trump has already announced his candidacy. Trump is an absolute master of the legal delay, meaning it is hard (but not completely impossible) to see him facing a jury before that election happens. Let's say the Justice Department did get a federal grand jury to indict Trump. What would follow (and never cease) would be an absolute flurry of legal challenges to every nit Trump's lawyers can find to pick at. Each and every one of these motions would have to travel up the judicial chain until it got to the Supreme Court. Perhaps this would happen on an expedited timeline, but then again perhaps not. A House committee just got Trump's tax returns, even though they had requested them years and years ago. That is how long the wheels of justice take to grind, at times. And it would be in Trump's interest to delay and try to gum up the works as much as he can manage.

All of the delay tactics might work well enough to at least push any trial past the election -- which Trump could actually win. Then what would the Justice Department do? What would Trump's new attorney general do? Probably drop the whole matter as fast as possible, since it is an internal rule that the Justice Department not ever prosecute a sitting president.

So while theoretically the consequences of today's criminal referrals could indeed save the country from Trump ever being in office again, whether that would even happen would be a function of how fast the prosecutorial and judicial process worked. And neither are exactly renowned for lighting speed.

The ball is now in the special counsel's court and, ultimately, the decision to prosecute or not will be made by Attorney General Merrick Garland. The House Select Committee wrapped up their own investigation and will be handing everything over to the Department of Justice this week. The committee will doubtlessly cease to exist once the Republicans take over the House again in January, but because the Senate is firmly in Democratic hands, Senate committees will now be able to investigate and issue subpoenas without any Republican support.

Any or all of these charges could be brought against Donald Trump at any time. So could other charges, dealing with things such as Trump refusing to relinquish presidential papers to the National Archive and his handling of classified material. The Justice Department is in no way bound by what happened today on Capitol Hill, but a marker has been thrown down for history to see. One chamber of the legislative branch has accused a former executive of the highest of crimes. The executive branch -- in the form of the Justice Department -- could bring a case to be adjudicated by the judicial branch. The checks and balances, in other words, are being put into play across the entire federal government. What ultimately happens is anyone's guess, but for the first time in American history, an ex-president has been accused of aiding and abetting an insurrection.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

17 Comments on “Aid Or Comfort”

  1. [1] 
    nypoet22 wrote:

    The j6c referral is certainly important for the sake of posterity. However, it plus a dollar may still be insufficient to purchase a cup of coffee.

  2. [2] 
    Speak2 wrote:

    I've watched them all but today was perfect. Specifically, the TV Exec they got (I think it was an ABC Exec, but it isn't worth looking up) did their job.

    This was especially well organized and presented. Basically, to use an old phrase, that person did not make the mistake of underestimating the stupidity of the American people.

  3. [3] 
    Speak2 wrote:

    One big non-Trump takeaway.

    Given a reasonable amount of time passage, Kinzinger could easily be elected president.

    He combines the Dad-joke concept in the best possible way, the beer-with-W concept, and he's Captain America level good-looking. I'm a happily married hetero male, but dang, the dude is hot.

    Politically, that's a really tough combo to beat.

    Don't get me wrong, his politics aren't any better than Liz Cheney's or most any other House Republican, but he's inured himself from any left-wing version of a Swift-Boat attack. We'd have to attack him solely on politics. If he out-waits a right-wing attack of that type, he's a Prez if he wants it.

  4. [4] 
    andygaus wrote:

    [1] As everyone has noted, the Justice Department has no obligation to follow up on the recommendations of the Jan. 6th committee. But that doesn't mean its recommendations are meaningless. Putting pressure on people and making them explain their inaction can be effective even in cases where no action is strictly required. Republicans were under no obligation to pay attention to Jon Stewart when he thundered all over the talk shows about the "burn pit" bill to benefit veterans, but it obviously had an effect. Likewise, the recommendations of the Jan. 6th committee have put additional pressure on the Justice Department and would make it hard for them not to act without explaining their inaction.

  5. [5] 
    MtnCaddy wrote:

    Yes, the J6C did it’s part to plow the road for DoJ. I think we’ve long passed the moment when it comes s now harder for DoJ to NOT indict. I don’t think there’s any choice anymore.

  6. [6] 
    MtnCaddy wrote:

    At this point the big unresolved question in my mind is will Trump be taken into and held in custody when the indictments land?

  7. [7] 
    nypoet22 wrote:

    Not a sure thing. Although no longer president, Donald actually does still arguably represent a quarter of our voting population, and a GOP house has the ability to delay indictments indefinitely by investigating the DOJ, FBI, etc.

  8. [8] 
    Speak2 wrote:

    MC [6]
    He's not personally going to do any physical violence to himself or anyone else. Released on his own recognizance would be the best-case scenario.

  9. [9] 
    MtnCaddy wrote:

    [8]

    …or anybody else?

    The casualties from January 6th would not agree. Trump is a clear and present danger to America and cannot be allowed to try to start a 2nd Civil War 2.0.

  10. [10] 
    MtnCaddy wrote:

    [7]

    How would a divided Republican House go about delaying Trump’s day in court — even if they were unified in wanting to defend Trump?

  11. [11] 
    nypoet22 wrote:

    @caddy,

    prosecutor "A" brings charges

    rabid house members dig through A's past, find a kindergarten superhero drawing that shows bias against supervillains (obviously they meant donald specifically)

    MAGA caucus screams to high heavens about A's witch hunt, demands a new prosecutor be appointed. Fox news hangs on every syllable.

    DOJ following protocol refers the demand to OIG, who does their due diligence and finds no apparent bias.

    MAGA caucus finds something in OIG investigators' pasts, insists it's a conspiracy and a cover-up by the deep state, launch massive committee investigation into each and every prosecutor, investigator and judge, as well as all their immediate family members and pets, spin any attempt to move forward as obstruction of THEIR investigation.

    lather, rinse, repeat

  12. [12] 
    MtnCaddy wrote:

    [11]

    Nope, unless you believe that Trump should NOT be held accountable. How would these machinations dissuade Merrick Garland, especially after J6C?

    The other thing is half the GQP wants to be rid of Trump. I know, I know, not a backbone to be found amongst this crowd. But I think dumping Trump and indicting Trump won’t happen until each happens. But when the first repudiation occurs many will follow. Likewise, the first indictment will open the flood gates.

  13. [13] 
    nypoet22 wrote:

    They wouldn't dissuade, they'd delay. I doubt the a.g. could do a damn thing to avoid it.

  14. [14] 
    Kick wrote:

    nypoet22
    7

    Not a sure thing. Although no longer president, Donald actually does still arguably represent a quarter of our voting population, and a GOP house has the ability to delay indictments indefinitely by investigating the DOJ, FBI, etc.

    No problem there since any investigation of the DOJ would naturally include the investigation of Jeffrey Clark et alia who were knee deep in Trump's attempt to use the Department Justice to keep himself in power when he knew the election had been certified by the states and he didn't have the electors to remain in office. I am sure Democrats would take full advantage of that opportunity; bring it. :)

  15. [15] 
    Kick wrote:

    MtnCaddy
    10

    How would a divided Republican House go about delaying Trump’s day in court — even if they were unified in wanting to defend Trump?

    Keep in mind that multiple of Trump's companies have already had their day in criminal court and Trump Organization is now a criminal entity having been found guilty on all counts... 17 of them. Trump himself is already being sued in multiple jurisdictions in America and there isn't a dang thing Congress can actually to delay the multitude of cases against him in either federal or state courts and whether criminal or civil. We have separate branches of government for a reason.

  16. [16] 
    Kick wrote:

    nypoet22
    11

    prosecutor "A" brings charges

    Grand juries of citizens of America are assembled to decide whether or not charges are warranted. It's actually a requirement outlined in the Fifth Amendment of the Constitution of the United States.

    rabid house members dig through A's past, find a kindergarten superhero drawing that shows bias against supervillains (obviously they meant donald specifically)

    Funny. Would GOP congresspersons stoop to the level of doing this to American citizens serving on grand juries? Oh, I wouldn't put it past them, but federal grand jury proceedings are secret in accordance with Rule 6(e) of the Federal Rules of Criminal Procedure. Who would they have to attack?

    MAGA caucus screams to high heavens about A's witch hunt, demands a new prosecutor be appointed. Fox news hangs on every syllable.

    Grand juries don't generally indict without some kind of evidence.

    DOJ following protocol refers the demand to OIG, who does their due diligence and finds no apparent bias.

    No way in hell does the DOJ override the indictment of an empaneled grand jury of American citizens over the pathetic outbursts of biased members of a political Party.

    MAGA caucus finds something in OIG investigators' pasts, insists it's a conspiracy and a cover-up by the deep state, launch massive committee investigation into each and every prosecutor, investigator and judge, as well as all their immediate family members and pets, spin any attempt to move forward as obstruction of THEIR investigation.

    What you've outlined here is comical obstruction of justice by congresspersons that would be laughed out of most (operative word there) any Court in America and might actually warrant prosecution against the congressional perpetrators. Grand juries of American citizens make these decisions... not prosecutors.

  17. [17] 
    Kick wrote:

    MtnCaddy
    12

    Nope, unless you believe that Trump should NOT be held accountable. How would these machinations dissuade Merrick Garland, especially after J6C?

    You're right; they wouldn't. It isn't even hard to fathom how Trump is easily included in an indictment. This is obviously a conspiracy committed by multiple persons. If you believe the Department of Justice is going to charge no one at all in Trump's circle of perpetrators, then Trump escapes charges. If you've been paying attention, you already know the Department of Justice has gotten multiple convictions and guilty pleas of seditious conspiracy and multiple convictions and guilty pleas of conspiracy to obstruct an official proceeding.

    This one isn't rocket science. White House counsel already testified that he advised John Eastman to get a good criminal defense attorney; that is good advice for all of them who will likely be charged together because a grand jury isn't likely to charge the obvious co-conspirators while declining to charge Trump right alongside them when he was as directly involved as they were.

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