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Memo to Dems: Don't Overthink Jan 6th
A criminal referral from Congress is largely symbolic, but symbols matter.
Michael Schmidt and Luke Broadwater of the New York Times broke a story on Sunday morning that triggered a lot of online Democrats to engage in their most frequent post-2020 behavior — being outraged at Democrats for not being appropriately outraged at the outrageous and often criminal acts of Republicans.
As Schmidt and Broadwater wrote:
The leaders of the House committee investigating the Capitol attack have grown divided over whether to make a criminal referral to the Justice Department of former President Donald J. Trump, even though they have concluded that they have enough evidence to do so, people involved in the discussions said.
The debate centers on whether making a referral — a largely symbolic act — would backfire by politically tainting the Justice Department’s expanding investigation into the Jan. 6 assault and what led up to it.
I don’t blame anyone for seething at the revelations in this article. Some Democrats are making a political calculation about a historic crime and that makes me want to bang my head against my desk. Still, it is worth understanding what is at stake so that we can appropriately allocate our outrage.
How Much Does This Matter?
Does it really matter if the January 6th commission sends a criminal referral to the Justice Department?
Yes, but not for the reasons people seem to think.
The Department of Justice is already in the throes of a reportedly wide-ranging investigation into the events of January 6th. Notably, the New York Times also reported this weekend:
Ali Alexander, a prominent organizer of pro-Trump events after the 2020 election, has agreed to cooperate with the Justice Department’s investigation of the attack on the Capitol last year, the first high-profile political figure known to have offered assistance to the government’s newly expanded criminal inquiry.
Sending a criminal referral to a department already investigating that crime is a largely symbolic act. Whether the committee hits send or not will have basically zero impact on whether Trump faces legal consequences for his illegal actions. Therefore, Twitter’s notion that Democrats are turning a blind eye to criminality or giving Trump a pass is not entirely correct.
Shouldn’t They Send it Anyway?
I am also quite skeptical of the idea put forward by some Congressional Democrats. They believe sending the referral would make Attorney General Garland less likely to proceed with charges. The idea that sending the referral would “politically taint” the investigation is some head-in-ass thinking.
Do these Democrats really believe Republicans and the Right Wing media machine are not going to politicize the charges brought forth by the Attorney General? After all, he was appointed by the man whose election the insurrection was trying to overturn.
I know social media and the pandemic shattered everyone’s brains and gave us the collective long-term memory of a gnat, but have these Democrats forgotten about the Russia investigation? Remember when Trump and Fox attacked Bob Mueller — a Republican appointed to the Department of Justice by Rod Rosenstein, a man Trump nominated?
If Merrick Garland will allow an email from a Congressional committee to be an excuse not to proceed with charges against Trump, he was never going to charge Trump. They might as well do what is right.
The Politics of Doing the Right Thing
While a Congressional criminal referral has little to no substantive impact, it does have political implications.
First, doing the “right thing” is not always the best politics, but obviously avoiding doing the “right thing” out of obvious political calculation is always bad politics. There is no question that sending a criminal referral is the “right thing” to do. Not sending it will make Democrats look weak and overly political and will undoubtedly exacerbate the alarming ambivalence in our base.
Second, announcing to the press via anonymous leaks that you have compiled sufficient evidence of criminality by the former and potentially future President of the United States but not taking the obvious next step is political idiocy. It makes Democrats look weak AND gives the Republicans an easy argument against Trump’s criminal charges. “If Trump committed a crime, why didn’t the Democrats make a referral to the appropriate authorities” will be echoed by every Republican candidate in every debate this fall.
Third, Trump is a criminal. He and the Republicans are openly planning more crimes to overturn future elections. Democrats have a political, moral, and patriotic obligation to call it out and use every tool in our admittedly limited toolbox to stop them. Ultimately, we cannot control Merrick Garland. The best way to keep Republicans from stealing future elections is to keep them out of power. And one of the best ways to keep them out of power is to remind voters of how they tried to steal the last election. Back in January, Data for Progress conducted a poll highlighting the importance of keeping January 6th front of mind.
Republicans want to minimize what happened on January 6th and diminish their role in encouraging and enabling an attempt to subvert democracy through violence. They committed a crime, and Democrats should shout about past and future Republican crimes from the rooftops. We must remind voters of the GOP’s fealty to a criminal and their efforts to help that criminal avoid accountability. That task gets much, much more complicated if the January 6th committee doesn’t act.
Ultimately, I don’t believe the decision will decide the election. But passing on this crucial moment will make a very tough election just a little tougher, and that’s the last thing we need. The referral is symbolic, but symbols matter.