The question is: What next? Will the Department of Justice act? Or will Attorney General Merrick Garland, in an anticlimactic Gerald Ford moment, decide that bringing Trump to justice would unacceptably tax the nation's tender sensibilities?
House panel member Jamie Raskin rightly said no "foot soldiers" should pay a penalty for their Jan. 6 offenses while "the masterminds and ringleaders get a free pass." Yet so far, as is the Beltway's wont, this has been the case.
Against Trump, the committee referred to DOJ the criminal charges of obstructing an official congressional proceeding, conspiracy to defraud the United States, inciting or abetting an insurrection, and conspiracy to make a false statement. Already — against others — 300 cases of obstruction have been brought; others have been charged with conspiracy to defraud the U.S.; and DOJ has won one conviction on a seditious conspiracy charge and is about to try five more. As for Trump and false statements, one might as well charge him with breathing.
Two years have passed since Trump attempted to overthrow the government. Little of this was done secretly. He ascended a stage and instructed armed malcontents to "fight like hell" on Jan. 6. He assembled co-conspirators to submit counterfeit electors. He criminally pressured state officials to overturn the will of voters. And he has stumped publicly for more than 24 months on the Big Lie, well after being informed by responsible parties that he was lying bigly.
Most of you reading this are private citizens of the United States. Donald Trump is a private citizen of the United States. Had you committed the above crimes, you would have been apprehended, charged, tried and convicted some time ago. Mr. Trump has yet to see FBI agents carrying a pair of cuffs. This, in a land where the rule of law purportedly reigns.
In its summary report, the committee wrote that its months of hearings and investigations have "led to an overriding and straight-forward conclusion: the central cause of January 6th was one man, former president Donald Trump." Testifying against him were nearly all partisan Republicans. More than 30 witnesses took the Fifth. The committee also referred criminal charges against former White House chief of staff Mark Meadows, former Justice Department official Jeffrey Clark and Trump lawyers John Eastman, Rudy Giuliani and Kenneth Chesebro, as well as filing ethics complaints — refusal to obey congressional subpoenas — against the House's pit of Trumper snakes, Kevin McCarthy, Jim Jordan, Scott Perry and Andy Biggs.
America's past political scandals — the Whiskey Ring, Teapot Dome, even Watergate — begin to fade in deserved obscurity when stacked against Trump's crimes, which themselves have failed to acquire a "ring"- or "gate"-like tag. Why? Because his crimes were too comprehensive and almost too incomprehensible to earn a singular title. Let it suffice, or to be hoped, that America had four sui gereris years of The Dark Ages — though all of it has come to light.
Some of it, however, may also begin to recede into the shadows. For the forces of obstruction are still at it. Committee member Zoe Lofgren observed that one witness was "offered potential employment that would make her 'financially very comfortable' as the date of her testimony approached by entities that were linked to Donald Trump and his associates." (The offer vanished when it became evident the witness would be cooperatively honest.) As DOJ's Jack Smith re-investigates the committee's findings, more and similar offers are likely to surface. The longer the additional inquiry, the more probable that damning testimony will slip away.
Nevertheless, a seeming eternity is in store. Mr. Smith only recently issued subpoenas "to officials across 2020’s most closely contested battleground states asking for all correspondence with Trump or his campaign, including his lawyers." Again, two years have passed already. Hundreds of prosecutions and convictions have occurred. The foot soldiers are being locked up, yet the masterminds and ringleaders are just now being summoned by Merrick Garland's man in the trenches. Visions of Dickens' sempiternal Bleak House legal wrangling dance in our heads.
Even Hope Hicks, perhaps Trump's most loyal pooch once upon a time, testified to the committee about her employer's absolute indifference to urgent, presidential responsibility. She knew what was coming on Jan. 6. For two days prior, she texted a colleague saying that she had "suggested … several times" that Trump call for peace in his Ellipse speech. But Trump refused. Said Hicks to the committee: "He said something along the lines of: 'Nobody will care about my legacy if I lose. So that won’t matter. The only thing that matters is winning.'"
When the only thing that matters is winning, criminal acts, if necessary, get green-lighted. Which is what Trump committed before, during and after Jan. 6. It's also what led the committee's vice chairwoman, Liz Cheney, to rationally conclude that "no man who would behave that way at that moment can ever serve in any position of authority in our nation again. He’s unfit for office." Plus staggeringly, awesomely and prodigiously liable criminally.
Yet there he is, out there — somewhere — perfectly free to serve in the position of highest authority once again. It's the clock versus Jack Smith and then Mr. Garland, and the clock is favored to win. Trump's lawyers may not know how to win cases in court, but they do know how to delay. And a mere 22 months separate Trump from a rerun of presidential impunity.
Do I believe he'll be renominated, let alone reelected? No. But since that darkest of black swan events in 2016, rational predictions have been defenestrated. Positively frightful and impeccably ghastly are opinions such as those of Pennsylvania's former Republican Party chairman, Rob Gleason: "There’s still a lot of people that support Donald Trump; there’s just no question about that." He noted the widespread ignorance of Trump's recent devastation of the party's 2022 hopes. "We assume people know too much," he said. But "they’re not following a lot of this stuff."
Reports the Times: "Indeed, some Republicans said privately that the House select committee’s criminal referrals could serve to galvanize Mr. Trump’s supporters behind him, as was the case for a short time after the F.B.I. searched his club, Mar-a-Lago, in August, looking for additional classified documents." Other Republicans disagree with such speculation, but again, see: 2016.
The timeframe is in Trump's favor. Special Counsel Jack Smith's investigation could extend well into the presidential primaries and even close to the November 2024 election. Merrick Garland would then be faced with the supremely delicate decision of whether — assuming Trump survives the primaries — to indict the Republican Party's presidential nominee. As we know from Garland's past behavior, he would act against this. And then we would face another back swan event.
The two scariest things in America today? The clock and the U.S. attorney general's office.