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Former President Donald Trump could use a lot of referrals—to a tailor, for example, who could outfit him in clothes that are his size. But this week he got the referrals that he most deserved: to the Department of Justice, recommending his criminal prosecution for trying to thwart the peaceful transfer of political power. And the DOJ's Special Counsel Jack Smith should waste no time in acting on the House of Representative's referrals.
On Monday, the Jan. 6th Committee made four criminal referrals to DOJ—obstruction of an official proceeding of Congress, conspiracy to defraud the United States, inciting or assisting an insurrection and conspiracy to make a false statement, all of which stem from the former president's post-election scheme to overturn the results of the 2020 election and his incitement and subsequent inaction while his supporters stormed the Capitol building during the counting of the electoral votes.
A withering, 17-point play-by-play of Trump's alleged crimes appears at the beginning of the committee's 154-page executive summary. It details how Trump's and his minions conspired to produce fake allegations of election fraud, attempted to unlawfully create alternate slates of electors to submit to Congress, pressured officials at DOJ to make false statements, leaned on state officials to alter their election results, strong-armed members of Congress into objecting to those results, knowingly sent an armed crowd to the Capitol from his rally on Jan. 6, 2021, sent an inflammatory tweet that put former Vice President Mike Pence in mortal danger during the riot and then unconscionably sat on his hands watching the mayhem on television instead of using the powers of his office to stop it.
The broad outlines of this sordid story have been well known for close to two years, but it is still jarring to see a series of such bizarre events narrated, textbook-style, for posterity. The seriousness of the threat to democracy and to the lives of elected officials and the audacity of the broad-daylight plot are worth a refresher. And the DOJ must act on these unprecedented referrals quickly unless it wants to give every future president an invitation to commit crime after crime with impunity.
I understand and appreciate the trepidation of those who, while they believe Trump committed these crimes, feel that his prosecution could dangerously inflame his supporters, further polarize the country and perhaps lead to sustained violence. No one thinks that prosecuting or jailing a former president should be done capriciously, nor should anyone have any illusions that a successful prosecution will somehow break the fever of conspiratorial thinking and paranoia that now grips the GOP base. But these objections are misguided and no longer rooted in any objective reading of the situation.
After all, Democrats made the threat to American democracy posed by Trump and his acolytes one of the centerpieces of their midterm election campaign. Not only did Trump's supporters not riot, their political standard-bearers lost one statewide election after another and mostly went quietly into the night, with sore loser Kari Lake of Arizona, who Tim Miller of The Bulwark calls "The Empress of Trollistan" the most prominent exception. Polling suggested that the FBI's August raid on Trump's Mar-a-Lago compound, which observers worried would rile up the MAGA masses, actually helped Democrats, perhaps by convincing democracy's rank-and-file defenders that they won't have to do all of the work by themselves.
What of the threat of future violence around the 2024 election? Damon Linker made the best case against prosecuting Trump, and one of his concerns was that going after Trump would make it more likely that "fights would break out in several states over vote counting, rules for rejecting ballots, certification of vote totals, appointment of electors." But with election-deniers licking their wounds and paying off the debts of their campaigns instead of camping out in statehouses and secretary of state offices, that nightmare scenario is orders of magnitude more remote than it was even two months ago.
The truth is that fears of a MAGA uprising in the wake of Trump's prosecution and conviction are mostly an enervating fantasy, designed to cow the law-abiding majority into acquiescing to rampant criminality at the highest levels of government. While far-right terrorism is a growing problem, the danger of a society-wide spasm of political bloodshed is almost certainly overstated. If anything, pursuing justice against the miscreants who tried to overthrow the American government live on television will serve as a deterrent to the minority of disgruntled Trump supporters seriously contemplating the choice between an enjoyable evening of Netflix and a pointless life of traitorous conspiracy.
Now, the DOJ is under no obligation to act on the committee's recommendations. In July 2016, after then-FBI Director James Comey announced that there would be no prosecution of Democratic Party presidential nominee Hillary Clinton for her use of a private email server while serving as secretary of state, the GOP heads of the House Judiciary and Oversight Committees made criminal referrals to the DOJ about her marathon testimony in October 2015 for a special House panel on the Benghazi incident.
That referral went nowhere. Trump, on the other hand, is almost certainly about to go through hell.
David Faris is an Associate Professor of Political Science at Roosevelt University and the author of It's Time to Fight Dirty: How Democrats Can Build a Lasting Majority in American Politics. His writing has appeared in The Week, The Washington Post, The New Republic, Washington Monthly and more. You can find him on Twitter @davidmfaris.
The views expressed in this article are the writer's own.
