Members of the House’s Jan. 6 committee are apparently split over whether to refer Donald Trump to the Justice Department, even though many if not all of the committee members appear to have concluded that the former president engaged in a criminal conspiracy.
“It’s absolutely clear that what President Trump was doing — what a number of people around him were doing — that they knew it was unlawful,” Vice Chair Liz Cheney, R-Wyo., said last weekend. “They did it anyway.” (Trump of course denies he has done anything wrong.)
There doesn’t seem to be much doubt among the committee members about whether Trump committed federal crimes.
Indeed, the committee made that case in federal court recently, when it argued in a filing that it “has a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States.”
The evidence was enough to convince U.S. District Judge David Carter, who wrote that “the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”
Referring to Trump’s legal henchman John Eastman as part of a civil lawsuit seeking to block the House committee from obtaining “big lie”-related emails sent from and to Eastman, Carter wrote: “Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history.”
“Their campaign was not confined to the ivory tower — it was a coup in search of a legal theory,” the judge continued. “The plan spurred violent attacks on the seat of our nation’s government, led to the deaths of several law enforcement officers, and deepened public distrust in our political process.”
Despite all of this, members of the select committee probing the Capitol insurrection are reportedly worried that actually making a criminal referral might not be prudent. According to The New York Times, some members worry that even a largely symbolic referral “would backfire by politically tainting the Justice Department’s expanding investigation into the Jan. 6 assault and what led up to it.”
You may have seen this movie before. Again and again — during Trump’s campaign, his presidency and now his post-presidency — we’ve seen responsible figures determine that something must be done about Trump’s behavior. And then, inevitably, they decide to let someone else do it.
They’ve rationalized their timidity as political prudence, but the result has been a pandemic of buck-passing.
In the 2016 campaign, Trump’s Republican rivals mostly refused to take him on until it was too late, all the while hoping that someone else would do the hard work for them. After his election, congressional Republicans fell into line. They rationalized that appeasement as a matter of tactical savvy. “I told myself I gotta have a relationship with this guy to help him get his mind right,” former House Speaker Paul Ryan, R-Wis., told political reporter Tim Alberta.
And we saw the same pattern with Robert’s Mueller probe, which documented Trump’s obstruction of justice at great length but declined to recommend either impeachment or criminal indictment.
To the end, though, Mueller hoped that someone else would take action. During congressional hearings, he was asked point-blank by lawmakers, “Could you charge the president with a crime after he left office?”
And Mueller responded with an unequivocal “yes.” He also specifically affirmed that the president could be charged with obstruction of justice after leaving office.
But that never happened.
Like other establishment figures who were rolled over by Trump, Mueller was held hostage by his excessive faith in guardrails.
In the end, as Andrew Weissmann, a member of Mueller’s team, wrote in his inside account, “Where Law Ends,” Mueller was so worried about overstepping his role that he opted instead to issue a “mealy-mouthed” report that documented all the ways Trump had obstructed justice but refused to do much of anything about it.
Like other establishment figures who were rolled over by Trump, Mueller was held hostage by his excessive faith in guardrails, institutional integrity and the virtues of staying in one’s lane. They brought cucumber sandwiches to a gunfight, and the outcome was never in doubt. Even after Jan. 6, members of Trump’s own party continued to engage in wish-casting. Senate GOP leader Mitch McConnell of Kentucky declared: “There is no question, none, that President Trump is practically and morally responsible for provoking the events of the day. “A mob was assaulting the Capitol in his name,” he said. “These criminals were carrying his banners, hanging his flags and screaming their loyalty to him.” But McConnell voted against a Senate impeachment conviction, because, he argued, Congress had “no power to convict and disqualify a former officeholder who is now a private citizen.” Once again, he held out hope somebody else might hold Trump accountable. “President Trump,” insisted McConnell, “is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations is run, still liable for everything he did while in office, didn’t get away with anything yet — yet.” But that was more than a year ago, and no one else has taken action. So now it is up the select committee and the Justice Department, which both seem to be caught in a cycle of hand-wringing. They worry about the “taint” of a referral and agonize over fears that Trump and the GOP will discredit any investigation as a partisan witch hunt. But here’s a reality check: No matter what they do, no matter how cautiously they act, Trump will react with bad faith and demagoguery. The Justice Department could hire an avatar of respectability and integrity to handle the prosecution (see: Robert Mueller) — and it wouldn’t matter. Whatever it does, Trump will let loose the dogs of disinformation, deceit and obstruction. Knowing it can’t control the reaction, maybe the select committee should just do the right thing — and finally, finally end the cycle of timidity, self-deterrence and buck-passing.
Charles Sykes
Charles Sykes is an MSNBC contributor and author of "How The Right Lost Its Mind" (St. Martin's Press). 
