Will Trump and other GOP officials be charged for the January 6th attack?
Donald Trump (AFP)

In all of the drama of the last few days, in which Donald Trump’s former chief of staff Mark Meadows has now been referred by the full House to the Justice Department to be charged with criminal contempt of Congress for defying a subpoena, House select committee vice chair Liz Cheney three times raised the possibility that Trump committed a felony by not following the pleas of others and stopping the attack.

This article was originally published at The Signorile Report

On three occasions — during the select committee’s vote Monday night, during the committee’s presentation to the Rules Committee on Monday morning, and during the debate on the House floor — Cheney asked a question that is taken right from the text of U.S. criminal code:

Mr. Meadows's testimony will bear on another key question before this committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress' official proceeding to count electoral votes?

It’s through the “action or inaction” of an individual that the law is key. As Salon’s Heather Parton noted on my SiriusXM program yesterday, this law, which punishes impeding a Congressional official proceeding with up to 20 years in prison — and a presidential certification certainly is an official proceeding — is what is being used to arrest, charge and convict most of the January 6th defendants. Many people have wondered why sedition or treason isn’t being charged. But as Parton explained, that’s hard to prove and the goal is to get convictions. But 18 U.S. Code 1512, a felony, is not hard to prove in this case. The insurrectionists did, through their “action,” impede the certification.

And, as Cheney is implying, Trump, per the law’s inclusion of “inaction,” is guilty of the same crime.

A lot of people are frustrated, and many called my show, regarding why the Justice Department didn’t just arrest Trump for this crime and others after Merrick Garland was sworn in. The other two guests on my program yesterday — legal analyst Mark Joseph Stern of Slate and Congressman David Cicilline of Rhode Island, chair of the House Anti-Trust Committee, formerly a member of the Judiciary Committee and one-time impeachment manager against Trump — gave further explanation, including about what the process now seems to be.

I’m not sure it assuages the critics of the DOJ but at least it gives an idea of what the plans have been. Stern pointed out that it appeared Democrats had essentially divvied up duties in taking on January 6th, knowing there were time constraints before the 2022 elections: The DOJ would focus on the low-level thugs who stormed the Capitol and the extremist groups, like Proud Boys and Oath Keepers, while Congress would focus on their own colleagues who might have been ringleaders, as well the White House, including Trump, and key aides both inside and outside the government.

Again, whether or not that was a great plan — and it’s possible there is a parallel investigation in the DOJ to what’s going on in Congress, though doubtful — is open to debate. But it is true there is limited time. The idea is that DOJ would prosecute the criminals among the mob — which they’ve been doing — while Congress would investigate the big names and refer any charges to the DOJ.

Rep. Cicilline told me that the select committee, at any time, could go to the DOJ and present evidence of a crime. In voting for contempt charges, and having the entire House vote first, the committee is going through highly visible formalities and rules necessary for a criminal contempt of Congress charge. But if the committee sees enough evidence of any other crime directly related to January 6th it can privately go directly to the DOJ.

For all we know, they may have done that already. But if not, from what it sounds like, they likely will be doing it at some point.

Cicilline said that could happen during an interim or final report, when they lay out a whole bunch of recommendations, or the committee could at any time go to the DOJ to made a recommendation each time it finds evidence of a crime — “they are duty bound” to do so, Cicilline said — even while the committee continues its work.

Whether or not the DOJ would move on any of those charges is a whole other matter. Obviously the DOJ did move on the Steve Bannon contempt charge and has responded forcefully to Trump and the GOP on some issues. But on some other matters regarding Trump, the DOJ has pulled back, angering many, certainly including me. We can only hope Democrats on the hill investigating January 6th have worked this out with DOJ officials. Rep. Cicilline told me [bold for emphasis]:

The Justice Department doesn’t typically share the status or even the existence of ongoing investigations so I don’t think we have a clear way to know exactly what they’re investigating. But there is no question that based on what we know already, the select committee has uncovered at least evidence that the Justice Department, in my view, should consider in deciding whether or not to bring criminal charges against individuals. And so I expect that at some appropriate time the select committee will make a referral to the Department of Justice based on their findings as it is related to particular individuals.”

So we’ll see where this is all going. The select committee, which has interviewed over 300 people, has been wisely dribbling out information — often bombshells, such as in the last few days — and is smart to do that to keep the January 6th attack in the news.

At the beginning of next year the committee will hold public hearings and Chairman Bennie Thompson says that that is when we’ll find out the names of GOP House members who were texting Meadows during and after the attack — one of them actually apologizing for not overturning the election — and I think we’ll find out a lot more at that time as well.