In its public hearings on the events of Jan. 6, 2021, the U.S. House select committee has presented a compelling case against former President Donald Trump for his role in encouraging and then failing to stop the violent attack on the U.S. Capitol. The committee also has provided a clearer understanding of other ways in which Trump tried to overturn the November 2020 presidential election.
Don’t get me wrong. It is essential that the former president be held accountable.
As a result, the committee voted Monday to recommend criminal charges to the Department of Justice against Trump and several of his associates. The recommended charges for Trump concerned four criminal statutes: obstructing an official proceeding, making false statements, defrauding the U.S. and inciting an insurrection. While these recommendations are understandable given Trump’s behavior, they are a mistake.
Don’t get me wrong. It is essential that the former president be held accountable. His subversion of Congress, the electoral process and our principles of democracy caused grave damage, and his recent call to terminate the Constitution in order to undo the 2020 election demonstrates that he continues to threaten our democratic institutions. He violated his oath to uphold the Constitution while serving as president, and he continues to reject our constitutional values as a former president.
However, making the case for a federal criminal prosecution is the responsibility of the U.S. Department of Justice rather than Congress. The House created the Jan. 6 committee to undertake a legislative investigation aimed at figuring out how to prevent future assaults on the Capitol and on democracy more generally. Ironically, in trying to hold Trump accountable under the law, the committee seems to be flouting the rule of law.
Legislators explicitly recognized the distinction between the prosecutorial role of the Justice Department and the legislative role of Congress when the House created the Jan. 6 committee on June 30, 2021: Its resolution establishing the committee called for a final report with the committee’s findings and conclusions regarding the causes and influencing factors of the attack on the Capitol and its recommendations for corrective measures. Such recommendations were to include changes in law and policy to prevent future acts of violence targeted at our democracy, to improve security at the U.S. Capitol and to strengthen the “resilience of the United States and American democratic institutions.” There is no mention of recommendations for criminal charges.
Yet the committee’s work looks very much like the activities of a special prosecutor. During the hearings, the committee vividly documented the violence on Jan. 6 and how Trump stirred up public opposition to the transition of power and encouraged rioters to come to the Capitol and fight for him. It also documented Trump’s false election fraud claims and his pressure on state election officials, Vice President Mike Pence and Justice Department officials to block certification of the vote.
This made the hearings essentially like grand jury proceedings designed to establish Trump’s culpability and elicit an indictment, save for the fact that grand juries operate in secrecy and have the power to decide which charges will be filed. The Jan. 6 committee’s referrals have no legal weight; the Justice Department alone will decide whether to charge Trump.
Even so, by assuming a prosecutorial role, the committee disregards the fundamental constitutional principle of the separation of powers, about which the Supreme Court recently wrote in a case with many similarities. In 2020 in Trump v. Mazars, as Congress sought Trump’s financial records, the court recognized that Congress must have access to the information it needs to do its job — but it cannot go beyond that.
Thus, Congress could require disclosure of the records only if the information would serve a “valid legislative purpose,” i.e., a matter for which legislation could be written. In contrast, the court wrote, the Constitution reserves law enforcement powers for the executive and the judicial branches. So Congress couldn’t use its authority to “try someone before [a] committee for any crime.”
The court also said that “investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.” That statement is particularly pertinent in light of a concern about Vice Chair Liz Cheney’s role in shaping the committee’s activities. Current and former members of the committee staff told The Washington Post on condition of anonymity that they worried that the committee had morphed “into what they have come to view as the vehicle for the outgoing Wyoming lawmaker’s political future.”
Congress has recognized the integral distinction between executive and legislative authority with its past commissions. Most famously, in the 1974 report on the Watergate scandal, the Senate committee recommended a host of legislative changes. These recommendations led to major legislative reforms concerning campaign finance, election oversight and political corruption. But the committee did not recommend any criminal charges.
The report for another prominent set of hearings on executive branch malfeasance, the Iran-Contra Affair in 1987, emphasized Congress’ constrained constitutional role. “Who was responsible for the Iran-Contra Affair?,” the legislators asked in the report and then wrote: “Part of our mandate was to answer that question, not in a legal sense (which is the responsibility of the Independent Counsel), but in order to reaffirm that those who serve the Government are accountable for their actions.”
The lawmakers didn’t recommend criminal charges — only legislative and policy changes to prevent future improprieties. They also shared their findings with the attorney general for legal review. Ultimately, an independent prosecutor brought charges against 14 government officials and independent contractors.
The committee also risks increasing partisan conflict, as future legislators may convene prosecutorial hearings purely for political purposes.
When it comes to the events of Jan. 6, the Justice Department is fully engaged in its investigation of Trump, and has already named a widely respected special counsel to oversee the “investigation into whether any person or entity violated the law” by trying to interfere with the transfer of power or the certification of the Electoral College vote.
In other words, the constitutional process for holding Trump accountable is working. By not respecting the constitutional design, the Jan. 6 committee risks worsening the already very low level of public trust in Congress. The committee also risks increasing partisan conflict, as future legislators may convene prosecutorial hearings purely for political purposes.
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Rather than duplicate the efforts of Justice, Congress needs to complement those efforts by broadly addressing the other factors that contributed to the events on Jan. 6. Congress needs to secure the integrity of future elections, extinguish the political extremism that Trump exploited and ensure that intelligence and law enforcement officials can protect government officials and facilities from a future attack.
Prosecuting Trump is necessary, but it isn’t sufficient to preserve our democracy. The forces that Trump marshaled and unleashed preceded him, and they will outlast him if we don’t take steps to subdue them. That is where Congress can be most effective, and uphold the rule of law as it tries to ensure that Trump is held accountable under the rule of law.