‘Trial by Legislature’

With early primaries marking President Trump’s sway and prospects for a comeback in 2024, is the Biden administration aiming to knock him out of the race? That’s the poser we take from a Times report that the Justice Department wants the January 6 committee to share its interview transcripts. It smacks of a politically motivated prosecution that is too constitutionally close, at least for our taste, to a bill of attainder.That’s the term for what the Supreme Court has called a “trial by legislature,” meaning an effort to convict an individual of a crime not in the courts but in the Congress. That’s just what the January 6 committee seems to have in mind for Mr. Trump. The Framers sought to prevent abuse of bills of attainder, Chief Justice Warren wrote in a 1965 opinion, “by limiting legislatures to the task of rule-making.” The January 6 panelists see no need for such a limit.The Times, citing unnamed sources, reported Tuesday evening that Justice asked the House panel for the writeups of “interviews it is conducting behind closed doors.” The committee has questioned more than 1,000 people, the Times writes. Justice’s request is seen as “further evidence of the wide-ranging nature of the department’s criminal inquiry” into January 6, as well “the role played by Mr. Trump and his allies” in the day’s events.Justice Department lawyers advised the committee that their transcripts “may contain information relevant to a criminal investigation we are conducting,” the Times says. That’s a signal of the administration’s intent to target Mr. Trump — a threat that was already implied in the “seditious conspiracy” prosecutions under way against figures like Stewart Rhodes, who headed up the Oath Keepers, some of whom allegedly stormed the Capitol.The Department’s letter implicitly raises the prospect of a kind of pincer attack on Mr. Trump from the legislative and executive branches. It follows pressure in the press and, it appears, from President Biden himself, for Attorney General Garland to move more aggressively against Mr. Trump. The Times, again citing unnamed sources, noted in April that Mr. Biden had said Mr. Trump “was a threat to democracy and should be prosecuted.”The president, the Times added, had remarked “privately” that “he wanted Mr. Garland to act less like a ponderous judge and more like a prosecutor” who would be “willing to take decisive action over the events of Jan. 6.” The contrast was noted with Mr. Garland’s “deliberative approach,” which, the Times reported, “has come to frustrate Democratic allies of the White House,” and Mr. Biden personally. Still, the Times was at pains to note, “the president has never communicated his frustrations directly to Mr. Garland.” That task went to Representative Elaine Luria, a Virginia Democrat who sits on the January 6 panel. “The Department of Justice must move swiftly,” she decreed. Given those marching orders, it comes as no surprise that the Justice Department, with its 9,500 lawyers, is now wheeling into action against, we speculate, Mr. Trump.The intensified prosecutorial interest in Mr. Trump, the Times says, shows Justice has broadened “its focus substantially” beyond the actions of the more than 800 individuals arrested for participating in the January 6 riot. In other words, federal prosecutors are no longer content merely to investigate and punish those who breached the Capitol, assaulted police, or damaged federal property that day.Justice Department lawyers also now want to probe “the planning for the rally on Jan. 6 that preceded the riot,” the Times writes, as well as “the broader efforts to overturn the election.” Hence the interest in the January 6 committee’s transcripts. The scrutiny comes as a federal judge has concluded, without benefit of a jury, that Mr. Trump “more likely than not” committed felonies in connection with blocking Mr. Biden’s election certification.It’s not our intention here to say that Mr. Trump is immune from criminal prosecution by normal means. It is our intention to say that it is wrong to violate constitutional due process and safeguards that are calculated to keep politics out of criminal cases. The timing of Tuesday’s leak to the Times on the eve of some big primary endorsement wins for Mr. Trump also raises doubts about the Biden administration’s intentions.

‘Trial by Legislature’

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