Judging Freedom - Jan 6 committee - No Criminal Referrals

Episode Date: June 14, 2022

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Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Thursday, June 14, 2022, Flag Day. It is about 1240 in the morning here on the east coast of the United States. Yesterday, the chair of the January 6th committee, Congressman Benny Thompson of Mississippi, said the committee would not issue a criminal referral. What was he talking about? Also yesterday, the attorney general of the United States, Merrick Garland, himself a former appellate judge, said that he and his January 6th prosecution team were watching the committee hearings. Here's the background. Congress is not permitted, thanks be to God, to indict anyone. The reason for that is British parliaments would indict someone, charge them with a crime, and find them guilty. That act, that legislation legislation was known as a bill of attainder.

It didn't put the person in jail, but it did make them an outlaw, meaning they didn't have the protection of the law. So their property could be seized and they could be attacked and assaulted. The practical effect was banishment from the British Isles. Madison, when he wrote the Constitution, did not want a situation where that could happen. So the United States Constitution expressly prohibits bills of attainder. When I was at Fox, I used to bust Bill O'Reilly's chops. Hey, Bill, you should be glad that bills of attainder are prohibited on the Constitution. What the hell are you talking about, Napolitano? Well, a lot of people in Congress can't stand you, Bill. They would love to declare you an outlaw.

You get the point. So why the investigation of what Congress says were crimes potentially committed by President Trump and by the people around him? So Congress can make what's called a criminal referral. Congress, its lawyers, its investigators, the investigators are usually ex-FBI agents, amass evidence and they send it to the Department of Justice and they say we're making a criminal referral. We think a crime was committed, but our opinion means nothing, so we're sending this to you. When Congressman and Committee Chair Thompson said yesterday we're not going to make a committee referral, three members of the committee objected and said we haven't decided that yet. One of the Republicans, Liz Cheney, and two of the Democrats, Congresswoman Luria and Congressman Schiff, said, well, that's really for the committee to decide, Ben.

We appreciate your opinion. It almost doesn't matter if there is a criminal referral. The Justice Department decides whether or not to indict somebody on the basis of the evidence before it, not on the basis of who wants them indicted. Moreover, when Merrick Garland, the Attorney General, was asked about this yesterday, he said, don't worry about it. You know, they are sharing evidence with us already, as anybody can do. You have evidence of a crime, send it to the DOJ, a federal crime. And Merrick Garland said that he and the prosecutorial team who are prosecuting some of the 800 people that were arrested and charged for crimes that allegedly took place on January 6th are also watching the committee hearings. Bottom line, when the committee hearings are over and the committee sends all of the

evidence it has amassed to the DOJ, the DOJ will decide if any of this evidence is sufficient to indict anyone and if any of this evidence is sufficient to convict anyone, no matter who that person may be and irrespective of who sent the evidence. People in Congress like to send criminal referrals because it's a boasting point for back home. Oh, I discovered evidence that Trump committed a crime, and I helped send that evidence to the DOJ. That's the type of boast that members of Congress would engage in. Don't take Congress too seriously. Don't take their words too seriously. My late friend, Justice Antonin Scalia, used to say it doesn't matter what Congress says, why it does something. They only do things for one reason and one reason alone, to get reelected. Now, I don't want to sound like a total cynic. I would imagine there are members of that committee who do believe that they are doing the right thing by looking for evidence of who may have committed crimes in and around January 6th. But they're politicians.

They're not professional prosecutors. Judge Napolitano for judging freedom.