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The year that the last congressional week has been

The narrative that the criminal referrals of Trump are pointless is as vapid as it is troubling

A photo of President Donald Trump is displayed during the final hearing of the Select Committee to Investigate the Jan. 6, 2021 Capitol riot on Monday.
A photo of President Donald Trump is displayed during the final hearing of the Select Committee to Investigate the Jan. 6, 2021 Capitol riot on Monday. (Bill Clark/CQ Roll Call)

Forget making an entrance, the 117th Congress is executing an exit unlike any other. How fitting.

From unprecedented moves against a former president to a scintillating address to a joint meeting by the Ukrainian president, the final legislative week of 2022 has been the whole year crammed into a few long days.

Ukrainian President Volodymyr Zelenskyy took a gigantic risk by traveling through his own contested territory — which has been littered with Russian missiles, unit-on-unit ground warfare and artillery fire for months — to get face-to-face with Republicans eager to slow or shut off the spigot of U.S. aid to his war-torn country.

He delivered a stark warning to U.S. lawmakers for the second time since March. His video appearance in the spring did not change many Republican minds. It isn’t clear if this in-person address will either.

After all, the Jan. 6, 2021 Capitol riot did not change most GOP minds about former President Donald Trump and his “Make America Great Again Movement.” They are an entrenched lot.

But the timing and risk of the trip were both questionable for another reason: It’s not just Republicans rejecting Zelenskyy’s demands for more advanced weapons systems, like long-range missiles and drones. The Biden administration has flatly rejected his previous request for these combat items, but he continued his pleas Wednesday night.

“This battle cannot be frozen or postponed. It cannot be ignored hoping that the ocean or something else will provide protection,” he said before a chamber featuring only around 90 of 213 House Republicans. “So much depends on the world. So much in the world depends on you.”

The former president

Meanwhile, across Independence Avenue, lawmakers made moves aimed at politically disqualifying Trump from ever again holding elected office.

The House select panel investigating the Jan. 6 insurrection unanimously voted to recommend the Justice Department prosecute a former president on four criminal counts: assisting an insurrection; obstructing an official proceeding; conspiracy to defraud the federal government; and making false statements. The panel’s final report, released Thursday evening, focused primarily on Trump’s role in the riot.

Unprecedented. Also unheard of: the House Ways and Means committee on Tuesday evening voted to release years of Trump’s tax records, documents he has guarded far more strenuously than the reams of classified papers he took to Mar-a-Lago.

How did Trump world react to the historic criminal referrals?

Trump himself, conjuring flashbacks to his most upset days as president on Twitter, fired off several posts on Truth Social — including a few that made little sense. In others, the former president either purposely distorted or showed he has no understanding of legal concepts.

“The Fake charges made by the highly partisan Unselect Committee of January 6th have already been submitted, prosecuted, and tried in the form of Impeachment Hoax # 2,” he wrote in one post. “I WON convincingly. Double Jeopardy anyone!”

Sorry, Mr. President. Double jeopardy applies only to the criminal law realm. As members of the House select committee said constantly during their probe, their primary charge was to determine what happened before and during the riot, then make legislative recommendations to avoid a sequel — and send any necessary referrals to DOJ, should their investigation uncover possible criminal actions.

Here is how the Legal Information Institute at Cornell Law School defines it: “The Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution prohibits anyone from being prosecuted twice for substantially the same crime.” Operative word: Prosecuted. In the court system.

‘Winning’

Former Trump White House aide and longtime confidant Hope Hicks was shown in a taped deposition saying that she warned Trump after the 2020 election that his claims of a “stolen” race would ding his legacy as president. Her boss responded, she said, with “something along the lines of, ‘Nobody will care about my legacy if I lose, so that won’t matter. The only thing that matters is winning.’”

The former president views most things, especially politics, as a competition. To lose is to be perceived as weak. Winning is the ultimate show of strength. Despite the possible charges against him, Trump showed the same mindset after the select committee’s final public hearing.

“ … But Liz Chaney lost by a record 40 points!” he wrote in one social media post, referring to the panel’s Republican vice chair, whom he helped oust in her primary earlier this year in Wyoming.

“The people understand that the Democratic Bureau of Investigation, the DBI, are out to keep me from running for president because they know I’ll win and that this whole business of prosecuting me is just like impeachment was — a partisan attempt to sideline me and the Republican Party,” Trump wrote in another post, referring to the FBI.

Missing from Trump’s post is any acknowledgment that he appears diminished politically and his vice grip over the party is showing signs of loosening.

Other members of Trump world, as always, tried some deflection.

Eric Trump, the former president’s youngest son, called the Jan. 6 committee a “one sided Kangaroo court.” Then came the family tradition of deflect and distract: “How about the same dedication and focus be placed on our boarder, weaponization of our criminal system, gas prices, crime, inflation… Nope – it’s all Trump, all the time.”

(Editor’s Note: Eric Trump’s use of the word “boarder” likely was meant to be “border,” but who knows? Maybe the Trumps are taking in roommates at one of their properties?)

If 45 and his inner circle grasp the legal trouble he soon might be in, they did not show it in the 24 hours after the panel voted unanimously to recommend charges against him not just of assisting an insurrection, but also conspiracy to defraud the United States government and obstruct an official proceeding and making false statements.

If charged and convicted on a possible insurrection count, Donald John Trump would be ineligible from ever again seeking elected office. That would be the polar opposite of “winning.”

The Jan. 6 select committee left several items under special counsel Jack Smith’s holiday tree, recommending charges that would, if he were prosecuted and convicted of each, put Trump in prison for four decades and lighter in the wallet.

The select committee during Monday’s session presented some not-seen-before evidence, including detailing testimony that members of Trump’s circle offered to compensate witnesses in return for them pretending to no longer recall what they knew about the weeks before and day of the Capitol attack.

‘Reflection and reckoning’

The legal threats to Trump’s political future and freedom only mount. “The Committee has evaluated the credibility of its witnesses and suggests that the Department of Justice further examine possible efforts to obstruct our investigation,” the panel wrote in its summary.

The witness tampering evidence “is the kind of evidence that may have far-reaching implications including bolstering Special Counsel Jack Smith’s January 6th and Mar-a-Lago investigations,” according to Ryan Goodman, a New York University School of Law professor and a former special counsel to the Pentagon general counsel.

In a post for the Just Security blog, Goodman wrote that “Smith may have every incentive to go down that path,” adding, maybe ominously for Trump: “It could enable his investigators to learn more from these witnesses and their lawyers about what they truly know about the former president’s actions and other evidence of criminal activities.”

Though some media figures and legal analysts argued in recent days the criminal referrals do not really matter, mute cable news and consider what happened. A congressional committee stated clearly in a legal document it believes a former U.S. president, while still in office, is guilty of insurrection, conspiracy to defraud the United States government, and obstruction of an official proceeding.

The referrals are as unprecedented as they are important — historically, politically and legally. The narrative that the referrals are pointless is as vapid as it is troubling, a threat to somehow normalize or shrug off Trump’s actions. Was the select committee supposed to not inform federal prosecutors that it found evidence of criminal actions that day?

Of course not. Panel Chair Bennie Thompson, D-Miss., explained why.

“We’ve never had a president of the United States stir up a violent attempt to block the transfer of power,” he said. “I believe, nearly two years later, this is still a time of reflection and reckoning.”

Editor-at-Large John T. Bennett writes a weekly column for Roll Call, parts of which first appeared in the subscription-based CQ Afternoon Briefing newsletter.

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