Trump criminal referrals will be 'impossible to ignore' by Jack Smith: legal expert
Jack Smith, Donald Trump (Smith photo by Robin Van Lonkhuijsen for AFP/ Trump by Saul Loeb for AFP)

In a column for the Bulwark, attorney and former Department of Homeland Security official Paul Rosenzweig explained that, while the criminal referrals from the House select committee that investigated the Jan. 6 riot carry no legal weight, it would be hard for special counsel Jack Smith to lightly regard them and not follow up with indictments.

On Monday, the committee held its last public hearing and followed that by asking the Department of Justice to investigate and indict Donald Trump and several close aides and advisers over their connection to not only the insurrection but also efforts to subvert the election and then cover up their efforts.

As CNN reported a summary from the committee maintained, "in extensive detail how Trump tried to overpower, pressure and cajole anyone who wasn’t willing to help him overturn his election defeat – while knowing that many of his schemes were unlawful. His relentless arm-twisting included election administrators in key states, senior Justice Department leaders, state lawmakers, and others. The report even suggests possible witness tampering with the committee’s investigation."

With that in mind, Rosenzweig wrote, "We have already seen, for example, the suggestion that some witnesses were offered jobs in exchange for favorable testimony and others were provided lawyers who tried to shape their testimony. These new, detailed factual allegations will likely open up new avenues of investigation. But they are, for the most part, sidelights to the main event, which is the potential prosecution of Trump (and others, including John Eastman and Rudy Giuliani) for attempting to overthrow the government. Formally, the referrals will have no impact on that decision."

However, as he noted, those referrals will likely put Smith under the gun with so much information about to become public after the release of the expected 1,000 page report.

Writing, "Assuming Smith can establish probable cause to indict Trump, which based on the public factual record seems like a safe assumption, he must undertake a balancing test before deciding whether or not to present an indictment to the grand jury. Congress has just weighed in—with considerable mass—on one side of that balance," the legal expert added, "The Committee’s referral will not determine in Smith’s prosecution decision. A prosecutor cannot take too literally public interest and sentiment. They deserve attention, but they cannot independently justify a decision to prosecute or not to prosecute."

Calling the request to prosecute Trump the latest in a "list of unprecedented events," Rosenzweig then added, "Congress can’t make Smith obey the referral, but it has made itself almost impossible to ignore."

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