Judging Freedom - Criminal charges of Trump by Jan. 6 panel

Episode Date: December 20, 2022

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, December 20th, 2022, five days to Christmas. It's about 10.50 in the morning here on the East Coast of the United States. Yesterday, the House of Representatives Select Committee on January 6th informally released its final report. The final report will come out in written form in the next few days, but in doing so, revealed that it voted unanimously to refer four criminal charges against former President Donald Trump to the Department of Justice. Now just a little background before we get into these charges. The Congress of the United States cannot indict or charge anyone with a crime. We know that because the Constitution expressly prohibits it. The reason the Constitution expressly prohibits it is because Parliament in the old days had a habit of

determining legislatively that a person was an outlaw. And Madison, James Madison and his friends who wrote the Constitution did not want that to happen here. So the technical clause is the clause that prohibits a bill of attainder. A bill of attainder is a legislative determination of guilt. Congress can say it thinks somebody is guilty. It can say it thinks somebody committed a crime. It can refer whatever evidence it has to back up what it says to the Department of Justice, but that's all it can do. There's nothing, it can't harm a hair on Donald Trump's head legally. Politically, of course, the damage to the former president is probably immeasurable. All right. The other background on the January 6th committee is that it is all Democrats and two Republicans. The two Republicans are Republicans who acknowledged from the outset they're not? Well, the Republican leader in the House of Representatives, Kevin McCarthy, who wants to become the next speaker when the Republicans take control of

the Congress in two weeks, and he might not get that because there are conservatives and libertarians that are holding out from voting for him. Another story for another time. Kevin McCarthy decided the Republicans would not cooperate with the committee. As a result, there's no minority staff. If there had been Republicans on the committee, then there would have been a minority staff, that is ex-FBI agents to work as investigators for the Republicans and former federal prosecutors to be a legal staff for the Republicans. This would have enabled the Republicans to offer their own version

of January 6th. I don't know that there is a version that can defend what President Trump is alleged to have done because the evidence against him, in my view, is damning. But the Republicans would have had an opportunity to present such evidence if they had a Republican staff, but they chose not to. They chose not to cooperate. They picked two Republicans who were going to vote against Trump anyway. So the report is one-sided. In my opinion, it is a sound report. Have I read all of it? No, of course not. I've only read the summaries of it. I will read all of it when it is published, and it will be published soon. Okay, with that as background, one more thing.

The referrals to the DOJ are a recommendation to the DOJ that they indict. DOJ really doesn't care who recommends an indictment. It does care if the recommendation comes with evidence, and it really cares if the evidence is something the DOJ doesn't already have. So as I speak, the DOJ is now combing through all the evidence that the Select Committee gave it, because the Select Committee's investigators, who are former FBI agents and as lawyers or former federal prosecutors may very well have unearthed evidence that the DOJ hasn't unearthed yet. Why? Well, people are sometimes reluctant to talk to the FBI, the DOJ's investigators, but they're not reluctant to talk to retired FBI agents working for the Congress. We'll see. We'll see if Congress came

up with any evidence that the DOJ hasn't found already. But the DOJ will make its own determination about whether or not to seek an indictment. It has been presenting evidence to a grand jury, but the grand jury will not vote on whether or not to indict anyone, and if so, for what crime, until after senior management at the Department of Justice, Jack Smith, the special counsel, and of course the attorney general himself, Merrick Garland, decide whether or not to seek an indictment. If they do, the grand jury will indict. We know that. The evidence is there, and when prosecutors ask grand juries to indict, they do so. If the DOJ decides not to indict, they'll issue a report. It'll damage Trump politically, but not legally.

And that'll be the end of it. Okay. What does the January 6th committee say Trump did? We're going to put up a full screen to show this to you. Four charges. The first, obstruction of an official proceeding. This is where the committee alleges that President Trump permitted the obstruction of the joint session of Congress in order to count the electoral votes. In other words, by doing nothing to stop it,

since it was on federal property, and he's the chief federal law enforcement officer, he permitted the obstruction. What did the obstruction consist of? Congress was chased from its chambers. It eventually resumed and counted the votes that evening. But the official proceeding, the joint meeting of the House and the Senate presided over by Vice President Pence was obstructed because, according to the committee, Trump riled up the crowd and then did nothing to stop them. Let's go to the next charge. The next one is conspiracy to defraud the United States, a technical charge, but the defrauding the United States is keeping the federal government from having the honest and true electoral votes by engaging in a conspiracy with people in Georgia to submit false electors, not the electors that were truly chosen by the state of Georgia,

the voters of the state of Georgia, to vote on behalf of Joe Biden, but the fake electors, not the electors that were truly chosen by the state of Georgia, the voters of the state of Georgia to vote on behalf of Joe Biden, but the fake electors that Trump's people said should have been chosen instead. Third charge against the former president, conspiracy to make a false statement. This is in connection with number two, because this one alleges a conspiracy, a meeting of the minds to commit a crime, where at least one person who's in that meeting of the minds takes at least one step in furtherance of the crime. So when someone prepared the names of the false electors, and the false electors actually signed documents going to the federal government insisting they were the true electors, and Donald Trump knew about that and consented to it. He participated in the conspiracy to defraud the United States of the benefit of the true electors. Fourth charge against the president, former president, and the most serious, inciting, assisting, or aiding and comforting an insurrection aid and comfort by his words, fight like hell, march to the Capitol,

fight like hell, and by his refusal to do anything to put a stop to it. None of this is new. The DOJ already knows about all of this. It has evidence to support all four of these charges. And as I said a few moments ago, it will now look and see if the congressional investigators came up with any additional evidence. Will this lead to indictments? In my opinion, it surely will lead to indictments. Will that prevent Trump from running for president? It'll harm him politically, but it won't legally prevent him from getting on the ballots. I think this is the tip of an iceberg of an overwhelming mountain of legal problems visited upon the former president. More as we get it. Judge Napolitano for Judging Freedom.