The headline may lead readers to believe that this commentary is going to be a defense of President Trump. Not at all.
Rather it is to explain why the work of the Select Committee is largely irrelevant to the course of any legal cases against the former President – and why there is a long road ahead before there is any resolution.
The first thing to understand is that while the Committee members refer to “charges” against Trump, he has not been charged with anything … nothing. Under our system of justice, a person is to be presumed innocent until proven guilty in a court-of-law. Of course, we know that bit of legal folklore is utter nonsense – and especially in this case. Half the nation has presumed Trump guilty of a broad range of crimes and misdeeds – including one’s upon which he has since been vindicated. And there can be no doubt that the members of the Committee have determined that Trump is guilty. They say so in absolute terms.
Virtually every authority on the cable news networks – on both sides – concede that the work of the Select Committee is purely political. That is a fact. Congress has no law enforcement powers. The Committee can gather testimony and documents and offer an opinion based on what it sees. And the Committee was composed completely of members who were committed to taking down Trump. That automatically makes their findings suspect. It will take a court-of-law to determine whether Trump has committed crimes, or not. And that is a far different matter.
It is a little like you see your neighbor beating his wife, and you call the police based on what you saw. You cannot arrest or indict the guy. You just pass along your information to the proper law enforcement authorities – and they take over. That is all the Committee did.
Since the Select Committee served more as a prosecutorial vehicle – more than an investigative or hearings format – you can expect the conclusions to be very one-sided. That works if you want to press a political case in the court-of-public-opinion. But courts-of-law have different rules and much higher standards.
Select Committee versus the Department of Justice
While the Committee certainly served a narrow political purpose – as it was established to do – it produced no unique benefit in the pursuit of Trump legally – or to any public interest. Virtually all the so-called “evidence” against Trump is circumstantial and founded in interpretation and opinion.
The much-hyped final meeting of the Committee was remarkable in what it did NOT do. In addition to NOT indicting Trump – because it cannot — it brought forth no new information. Most of the video clips and the accusations by Committee members have been seen and heard hundreds – maybe thousands — of times over the course of the past 18 months.
The accusations against Trump were no surprise. It was the original goal of the Committee – and confirmation of their specific findings and probable course of action have been leaked for weeks.
I have called the work of the Committee largely irrelevant because every accusation they have made against Trump is currently being investigated by the Department of Justice and the recently appointed Special Counsel Jack Smith. The DOJ investigation is the ONLY one that counts. The Committee has only made criminal referrals to the DOJ.
There is no assurance that the DOJ will act on the referrals. They often do not. You will recall that the Committee referred four individuals to the DOJ for criminal prosecution for defying a subpoena. The DOJ acted on two of them – Steve Bannon and Peter Navarro — and put the other two in the office shredder – including former White House Chief-of- Staff Mark Meadows.
The most serious crime the Committee alleges against Trump is insurrection. If convicted, it would preclude Trump from holding public office in America in the future. But it is the most likely to be the one that the DOJ rejects – if any. It is very difficult to get a conviction for insurrection – and a thousand times more challenging if it involves a former or future President.
Much of the information gathered by the Committee is either useless in terms of any court cases – or is already in the sights of the Special Prosecutor. For Example, the testimony the Committee and the press touts as the most impressive and informative is that of Cassidy Hutchinson. However, virtually everything she said is inadmissible hearsay in a court-of-law.
While there may be some prosecutorial “wheat” in the piles of paper generated by the Committee, there is mostly “chaff” in terms of legal prosecution. The “wheat” has already been publicized by the Committee. The DOJ knows most of what the Committee has produced and is pursuing testimony and evidence on its own. Will there be a useful snippet here or there for the DOJ? Sure, but not much that they cannot find on their own.
And finally, the DOJ has to deal with defense arguments and witnesses – and exculpatory evidence that the Committee ignored.
If you think my opinion of Pelosi’s Select Committee is biased, consider the opinion of the left-wing panelists on CNN and MSNBC – especially those former federal prosecutors. Chuck Rosenberg – former U.S. Attorney for Eastern Maryland – praised the good work of the Committee, but called it “symbolic” and even “meaningless” in terms of the requirements for the DOJ to make formal charges.
He noted that of thousands of hours of recorded testimony, the Committee only made 20 hours public – a very strategically selected 20 hours, I might add. He noted the absence of defense arguments, cross examination and rules- of-evidence that would apply in a real court. He said the DOJ “does not need the Committee’s recommendations.”
Former FBI official Andrew McCabe – a staunch anti-Trumper — provided the same cautions when evaluating the work of the Committee compared to the need to indict and convict. That latter is a much steeper Hill.
Timing
Then there is the issue of timing. Some folks may think that with the issuance of the Committee Report, the legal bloodhounds will be at Trump’s door very soon. Not so. The Special Counsel has just begun his work. These things take months and even years to mature to the point of an indictment – and there is no guarantee that there will be one. Once the Special Counsel has completed his work, the decision to indict or not indict is up to Attorney General Merrick Garland.
If there is an indictment, delays, jury selection and the trial could add several more months to the calendar. That means that the question of Trump’s innocence or guilt might not be determined until after the 2024 Presidential Election. If convicted on an insurrection charge, Trump COULD already be in the Oval Office for a second term (but I doubt it).
Role of Special Counsel
It is also important to understand the role of the Special Counsel. Once he is finished with his investigations, he may recommend charges against Trump and others. But even as Special Counsel, he is still working for Garland. The guy still reports to the Attorney General – as did Special Counsel Robert Mueller. Smith is not an Independent Counsel – as was the case in the Clinton investigations.
Summary
In terms of the pursuit of Trump in conjunction with the events leading up to and including January 6, 2021, the Select Committee was a political side show. Some argue that the Committee Report will put pressure on the DOJ. Personally, I doubt it. The folks at the DOJ do not respond to being pushed. In fact, trying to influence a prosecution can be a crime in some cases – unless you are a member of Congress and above many laws that cover we mere citizens.
Garland not only has to look at the evidence, but he must also determine if it is sufficient to obtain a guilty verdict beyond a reasonable doubt in the minds of 12 jurors. It will take a lot more than what the Committee is offering to reach that threshold. Finding a person guilty in the court-of-public-opinion is a no brainer. It does not depend on real evidence, but just a good narrative and a compliant new media to carry it.
I am afraid that the long and expensive work of Speaker Pelosi’s Select Committee is — as they say – “a lot of sound and fury signifying nothing” – unless you count the political public relations value for the Democrats.
Whatever you may think of the work of the Committee – or the guilt or innocence of Trump – get comfortable. It will be a long time before anything substantive or definitive occurs – and then it will be the work of the Justice Department, not some kangaroo congressional committee, that eventually brings the Trump issues to closure.
So, there ‘tis.