The January 6 follies

 Andrew McCarthy:

There is a danger in repeating the same script ad nauseam, as the House January 6 committee has done in its not one but two final performances.

Recall that the last one, in October, featured the dramatic proclamation that the committee was issuing a subpoena for Donald Trump’s testimony . . . under circumstances where it knew it would never get such testimony. Monday’s theater — apparently the finale, with Republicans poised to take control of the House and shutter the production — featured the dramatic proclamation that the committee is referring the former president to the Justice Department for prosecution . . . under circumstances where it knows such referrals are nonbinding and generally ignored by the Justice Department, except to the extent that they may be counterproductive to the building of a successful prosecution.

The danger of repetition is that one begins to notice flaws that previously slipped by, undetected. I finally caught a basic one during Monday’s performance.

If committee members have said it once, they’ve said it a hundred times: President Trump intended to disrupt the peaceful transition of power. If the phrase were a drinking game, we’d have been sloshed by intermission at each committee session. Alas, while repetition may be the mother of study, it is not, on the matter of political narratives, the mother of proof.

Forget the committee’s opening vow to establish that Trump masterminded a multipart conspiratorial enterprise. Here, the committee can’t even prove its basic point. The truth of the matter is that Trump intended to disrupt the transition of power. The committee has not come close to proving — much less proving beyond a reasonable doubt — that he intended disruption of the peaceful transition of power.

This salient distinction is easily missed because it cannot be gainsaid that the peaceful transition of power was disrupted. There was a riot, after all. It was carried out by Trump supporters. They assaulted security forces, injuring scores of police. They also smashed windows, broke through doors, and generally caused a nontrivial amount of physical damage to the facility (although Congress was able to reconvene a few hours later, since these rioters did not firebomb a federal facility, as left-wing radicals in Portland repeatedly did, nor burn the place to the ground and kill a person, as left-wing radicals in Minnesota did).

Nevertheless, the hole in the committee’s case has always been a criminally actionable nexus between Trump and the violence. There isn’t one.
...

Raskin (a constitutional-law expert manqué, who was for election denial before he was against it) cited four criminal offenses. I’ll come to the first three in a moment, but the fourth is a doozy: Section 2383 of the criminal code, which makes it not only a felony punishable by ten years’ imprisonment, but a basis for disqualification from “holding any office under the United States,” for a person to incite, assist, or engage in an insurrection against the United States.

Though I wouldn’t be otherwise surprised, I suspect Raskin knows that a careful prosecutor would not try to apply Section 2383 to the presidency. The qualifications and disqualifications for the presidency are set forth in the Constitution; ergo, they cannot be altered by a statute — it would require a constitutional amendment. The Constitution limits disqualification to presidents who have been convicted at a Senate impeachment trial. Trump was acquitted at the post–January 6 impeachment trial at which Raskin served as chief House prosecutor. Section 2383’s disqualification provision appears to draw on Section 3 of the 14th Amendment, which provides for disqualification from some federal offices for participation in an insurrection (the Amendment’s framers had in mind the Civil War, a rebellion lasting four years and in which hundreds of thousands of Americans were killed). But Section 3 does not include the presidency (or vice presidency) among those offices.

Let’s set aside that the disqualification provision is inapplicable. The point is that the Justice Department, which has been probing the Capitol riot for two years with greater investigative resources and institutional competence than the January 6 committee, has charged upwards of 800 people in connection with the riot, yet it has not alleged that a single one of them committed the federal offense of insurrection. Not even those who clearly engaged in violence. What’s more, not only has that same Justice Department never charged Trump with any crime, let alone a crime of violence; it has not even cited him as an unindicted co-conspirator. Indeed, it has portrayed Trump as a pretext for the Capitol riot, not its catalyst. Prosecutors have aggressively opposed efforts by January 6 defendants charged with violent crimes to shift blame to Trump for their actions.

It is not legitimately possible to convict Trump of inciting a violent crime because, whether you accept that he meant it or not, he explicitly called for peaceful protest. The committee well knows that, but it studiously purged Trump’s allusions to nonviolence throughout its performances. The Justice Department doesn’t get to do that. The law mandates that prosecutors disclose exculpatory evidence . . . and when there is exculpatory evidence that negates a core element of a crime, the Justice Department does not indict the case in the first place. It’s not that the DOJ wouldn’t love to charge Trump with a violent crime; it’s that the DOJ doesn’t want the egg of acquittal on its face.

The three other referrals fare no better.
...

There is obviously more.

McCarthy makes a strong case for how ridiculous the committee charges are.  That committee was made up of Trump haters and they wanted to do what they could to thwart democracy in 2024 to prevent people from being able to vote to nominate Trump and reelect him.  I suspect they did this because his election would be a rebuff of the Democrats that have a paranoid response to his election.  They are some of the same people who pushed the Russian collusion hoax and the insurrection hoax which they are still pushing without evidence.  They are some of the same people who twice tried to impeach him on specious charges.  I think that when it comes to Trump there are some Democrats who do not believe in democracy. 

See, also:

Liberal Writer Shreds the January 6 Criminal Referral Facade With a One Tweet