What To Expect When You're Expecting A Criminal Referral For Donald Trump

This afternoon the House select committee investigating the January 6, 2021, attack on the Capitol will have its final public meeting, at which is it set to vote on criminal referrals for the former Crime-Boss-in-Chief.

In one sense, it's anti-climactic. The Justice Department is already investigating the Trump administration's efforts to halt President Joe Biden's electoral certification, and anyway federal prosecutors have zero obligation to take marching orders from Congress. But in another sense, it's vital that we have this public reckoning of the attempted violent coup fomented by Donald Trump and his deplorable band of traitors. Because let's be very clear here: If you oppose the democratic transition of power, then you hate the very idea of America itself. And so having this meticulously assembled and documented historical record of what happened that day, with depositions from virtually everyone on the inside, matters.

Because you know damn well that those filthy assholes will spend the rest of their miserable lives trying to retcon this thing into a patriotic protest over a supposedly stolen election. And we are not going to let them succeed.

With that preamble, let's talk about what we can expect to see this afternoon.

Politico reports that the committee is expected to refer Trump himself for prosecution on three charges.


Under 18 USC § 2383, "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."

Essentially, this is the incitement charge, and it would be very difficult to prove. Yes, we all saw Trump spend months whipping his followers into frenzy with lies about a stolen election. We saw him summon the mob, tweeting "Be there, will be wild." We heard the speech on the Ellipse where he exhorted them to ""fight like hell, and if you don't fight like hell, you're not going to have a country anymore." And he knew damn well that the mob was armed, because he told the Secret Service to take down the metal detectors at the gate since he knew that the men with guns weren't there to hurt him. We saw him tweet invective against Mike Pence, even as the mob had breached the Capitol.

Is that enough to convince the Justice Department to charge Trump?

Eh ... you can color us skeptical on that one. Trump would undoubtedly point to his comment on the Ellipse that "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."

Obstruction of an Official Proceeding

Multiple January 6 defendants have already been charged under 18 USC § 1512(c)(2), which holds that "Whoever corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both."

It would appear more plausible that Trump could be successfully prosecuted under this statute, not only because he summoned the mob, but because he spent weeks pressuring Mike Pence to illegally reject swing state electors and recognize the fake electors with their fraudulent certificates. Judge David Carter in California has already ruled that some of attorney John Eastman's communications are not protected because he was likely engaged in a scheme of criminal obstruction, triggering the crime-fraud exception to attorney-client privilege. And some of those communications prove that Trump had been told repeatedly that his allegations about rampant vote fraud were categorically false, so the Committee isn't going out on much of a limb here.

Conspiracy to Defraud the United States

"If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both," reads 18 USC § 371.

Let's go with "or more," since there were a whole lot of people in Trump's orbit who conspired to thwart the electoral certification and substitute cosplay electors for the real ones. Based on nothing more than preposterous claims of Chinese Bluetooth thermostats, Italian space lasers, and Black women just doing their damn jobs, Trump and his goons convinced wide swaths of the country to support a wholly illegal effort to thwart the will of the voters.

If that's not a crime, what is?

And ... ???

Well, if we were John Eastman, Jeffrey Clark, Mark Meadows, or any of the other dipshits who helped put this plan into action, we'd be feeling a bit dyspeptic this morning. Because if the big guy goes down, they probably do, too.

Reps. Kevin McCarthy and Jim Jordan might also be looking at a referral for ethics charges, since they defied the committee's subpoenas. That won't matter much when Republicans take back the House next month, but it will serve as a convenient marker when the GOP starts dropping one million insane subpoenas demanding Joe Biden show up and let those freaks scream at him all day long.

And in the meantime, the committee's going to release thousands of pages of testimony and accumulated evidence to help the Justice Department build its case.

But even if no one is ever charged — and we need to brace for the very real possibility of that being the final outcome — it still matters. The committee established a historical record of what happened almost three years ago. No one will ever being able to whitewash that horrible day. We owe them an enormous debt of gratitude.


Watch out for your liveblog of the hearing next up!


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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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