The Founders Would Have Been Appalled at the January 6 Committee

The final act of the January 6 committee, voted on in broad daylight, represents, to us, the final act in a process that the Founders of America had tried to prohibit — a process of attainder, meaning a trial on criminal charges by the legislature. It is prohibited to the Congress in Article I, Section 9. And by our lights, referring President Trump and his colleagues for criminal prosecution is an evasion by the Congress.We understand that we are the only newspaper banging this drum (not an entirely novel situation for us). Nor are we without illusion in respect of how serious the moment is. It’s decidedly possible that the Justice Department will seek an indictment against Mr. Trump and alleged confederates and try them on charges that could put them away for years. That would be deeply divisive, as the Wall Street Journal argues, though a jury would have the last word.It might — it’s a long shot — be possible for Mr. Trump to press a constitutional objection, double jeopardy, on one charge on which he was referred, incitement to insurrection. That’s because of Article I, Section 3 of the Constitution, which says the “party convicted” in an impeachment trial shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. It might present a problem in prosecuting Mr. Trump.That’s because, while Mr. Trump was tried in the Senate for incitement to insurrection, he wasn’t convicted. He was acquitted, the Senate having determined that he was “not guilty.” So the question is whether he can be tried again — double jeopardy — for the same charge. A Justice Department memo on this question in 2000 concluded that it was ambiguous but that probably a party acquitted in impeachment could still be tried in court.The other charges, including obstructing an official proceeding, conspiring to defraud the United States, and conspiring to make a false statement, offer a mixed bag for prospective prosecutors. The obstruction charge, in particular, offers a tenuous path for the Justice department. That’s because, as some sages suggest, the law doesn’t have an obvious application to the violence on January 6. The question is pending before the riders of the D.C. Circuit.The obstruction law, enacted under the Sarbanes-Oxley Act, was designed to combat corporate fraud. Prosecutors have deployed it against January 6 rioters, yet, as Bloomberg News’ Noah Feldman notes, there are doubts as to whether it “should apply beyond the context of altering documents.” A federal district judge, Amit Mehta, has asked whether using the law against the rioters amounts to “an appropriate exercise of prosecutorial discretion.”So while the January 6 panel’s Congressman Jamie Raskin stresses the “magnitude of the crime against democracy” purportedly committed by Mr. Trump, the case the solons have assembled appears to be wobbly. This is despite the committee’s best efforts to constitute itself as an ad-hoc tribunal, having, the Times reported, hired 14 ex-federal prosecutors tasked with “employing aggressive tactics typically used against mobsters and terrorists.”To the extent that the current moment is a “time of reflection and reckoning,” as it was put by the panel’s chairman, Representative Bennie Thompson, the thing to ponder is how far the committee strayed from legislative tasks. By presuming to take on the role of prosecution — in our system, a function only of the executive — the members of the committee lost sight of their actual jobs as writers of the laws, and not as caretakers of their faithful execution.

The Founders Would Have Been Appalled at the January 6 Committee

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