If Trump broke the law, should the Jan. 6 committee recommend prosecuting him? Uh, yeah

The House Jan. 6 panel has been a model of congressional efficiency in an era of general disbelief in such a thing. A long line of treason-adjacent officials have been forced to answer questions or face contempt charges, producing a series of revelations about the direst assault on the U.S. Capitol not carried out by the British Empire.

This being a congressional committee, however, someone on the inside was bound to wonder whether the exercise was proving too productive. Enter California Rep. Zoe Lofgren, recently found suggesting that the most pivotal question facing the committee — whether to recommend criminal charges against former President Donald Trump — is irrelevant.

Lofgren, D-San Jose, told Politico that a criminal referral — through which lawmakers may recommend that the Justice Department prosecute a suspected crime — “doesn’t mean anything.” She and other members of the committee noted that congressional referrals are purely advisory; whether to pursue a criminal case is entirely up to Attorney General Merrick Garland.

That’s legally accurate but substantively wrong. Of course a congressional committee can’t tell the attorney general what to do, but Special Counsel Robert Mueller’s all too understated report should have clarified the danger of failing to make the conclusions of such a sensitive and exhaustive investigation clear. After all that, expressing no opinion on the clearest controversy before the committee would be absurdly derelict.

Committee members also pointed to a recent court ruling in which a California-based federal judge, David O. Carter, found that Trump and attorney John Eastman, the former dean of the law school at Southern California’s Chapman University, likely committed crimes related to the attempted coup. Carter wrote that the former president’s efforts to bully then-Vice President Mike Pence into overturning the election “more likely than not” amounted to criminal obstruction of an official proceeding and conspiracy to defraud the United States.

Garland and everyone else has seen the judge’s analysis, the reasoning goes, so who needs the committee’s? It’s a puzzling argument given that the ruling concerned a dispute over disclosures to the committee and therefore wouldn’t exist without it.

House Speaker Nancy Pelosi rightly formed the select committee to investigate the Capitol breach after Minority Leader Kevin McCarthy killed a bipartisan commission negotiated by both caucuses. The members now preemptively diminishing the outcome of their own investigation are doing McCarthy’s dirty work for him.

The committee’s bout of self-doubt came the same week that Trump boasted about the crowd he drew to Washington that day and claimed that only the Secret Service’s reservations prevented him from joining the march on the Capitol. For some reason, that is, he doesn’t seem worried.

This story was originally published April 9, 2022 at 5:00 AM.