The House select committee probing the January 6, 2021, assault on the U.S. Capitol is scheduled to release its final report Thursday, referring former president Donald Trump to the Department of Justice for criminal investigation and potential prosecution for trying to overturn the results of the 2020 election won by President Joe Biden.
As Attorney General Merrick Garland considers whether to accept the recommendation, the White House has been treading carefully to avoid the appearance it is targeting a potential political opponent in the 2024 election.
On numerous occasions White House press secretary Karine Jean-Pierre has emphasized that the White House will not politicize the process.
“I just want to be very careful and refer you to the Department of Justice on those, because this administration and the DOJ conduct criminal investigation independently, free of any sort of — any kind of political interference or any interference at all,” she said earlier this week.
The report, released just two weeks shy of the two-year anniversary of the storming of the Capitol by Trump supporters, caps an unprecedented chapter in American history where a committee of lawmakers, which included two Republicans, recommended the Justice Department pursue at least four criminal charges against Trump related to his alleged efforts to prevent the peaceful transfer of presidential power: obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and incitement, rebellion or insurrection.
No former U.S. president has ever been indicted for criminal conduct. Given the high stakes and sensitivity, it would be prudent for the administration at this point to simply get out of the way, said Peter Loge, director of the Project on Ethics in Political Communication at George Washington University.
“The best thing that President Biden can do is what he’s doing, which is to say – you know, the House committee made a really compelling case. In my view, it's really clear, I agree with their conclusions, we have to continue to defend and promote democracy, and now it's up to the Department of Justice.”
Hold accountable those responsible
Last month after a jury in Washington convicted two members of the far-right group the Oath Keepers on seditious conspiracy charges for crimes related to the Capitol attack, Garland said the department will continue to work "to hold accountable those responsible for crimes related to the attack on our democracy on January 6, 2021."
However, there are clearly political implications to investigating such a public and controversial figure as Trump, especially after his November announcement that he will be a candidate for president in 2024.
Running for president does not shield an individual from criminal probes: Hillary Clinton, Trump’s opponent in 2016, was investigated beginning in 2015 on her use of a private email server. Also, the Justice Department for months has been running investigations related to Trump's alleged mishandling of classified documents at his Florida residence, Mar-a-Lago, as well as potential attempts to nullify the 2020 election results. Still, officials must take extra caution to avoid even the appearance that the investigation of the former president is politically motivated.
Independence of Justice Department
The attorney general is appointed by the president and confirmed by the Senate, but the Justice Department has a degree of independence stemming from practices established after the 1974 Watergate scandal, when President Richard Nixon attempted to use department officials for his political agenda, ordering Attorney General Elliot Richardson to fire Special Prosecutor Archibald Cox. Richardson refused and resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox; Ruckelshaus refused, and also resigned.
There’s also the Ethics in Government Act of 1978 that allows investigations into misconduct to operate independently of presidential control, which provided the legal basis for Garland to appoint special counsel Jack Smith to lead the Trump investigations in November.
"Such an appointment underscores the department's commitment to both independence and accountability in particularly sensitive matters,” Garland said.
Many Republicans, including Mike Pence, Trump’s former vice president, say that even with the investigation being conducted by a special counsel, the Justice Department should not accept the committee’s recommendation.
"I would hope that they would not bring charges against the former president,” Pence said in an interview with FOX News earlier this week. “I think the president's actions and words on January 6th were reckless. But I don't know that it is criminal to take bad advice from lawyers. And so I hope the Justice Department is careful."
Other observers say that despite the risk of widening political divisions even further, a full investigation is worth it.
“There's at least the possibility of the genuine independence of the Department of Justice and a careful prosecution waged against a former president who in important ways was lawless, that will have the effect of shoring up the rule of law and protecting our democracy,” said William Howell, professor of American politics at the University of Chicago. “That's the bet the Department of Justice is making.”
Howell said no matter how well Smith carries out the investigations, how much evidence he unearths and how carefully he abides by the law, expect Trump and his supporters to cry foul.
Trump already did. Last month he slammed Smith’s appointment and called it a continuation of what he calls the Democrats’ witch hunt against him.
"Over the years, I've given millions and millions of pages of documents, tax returns and everything else, and they have found nothing,” Trump said during a speech at Mar-a-Lago.
“Which means I've proven to be one of the most honest and innocent people ever in our country."
