Not a Trial
In yesterday’s essay, I presented the January 6th Committee hearings as a cross between a criminal trial and a “mini-series”. Information is being presented – but unlike a true court proceeding, much of that is a part of a narrative presented by the Congressmen, backed up by edited clips and snippets of “evidence”. And while we are familiar with that form of presentation, often used to further the plot in TV and movie trials; in a real courtroom that would not be allowed during witness questioning. In a court, the whole information must come from the witness, not the attorney, “leading the witness”. The attorneys can only elicit facts from the witnesses, not present those facts (“facts not in evidence”) themselves.
And of course, in a courtroom there would be a defense, cross-examining the witnesses and presenting alternative theories of the “crime”.
The January 6th Committee isn’t a “trial”. It is an investigation, now presenting to the Congress, and the Nation, what they discovered about the events leading up to January 6th. The members of the Committee aren’t going to “convict”, at least not in the legal sense. They are, in the most limited sense, telling the story of the Insurrection to the Congress, for the purpose of creating legislation to avoid one in the future.
But the audience is much larger than that. In the first night of Committee hearings, over twenty million Americans watched on television or cable. Many more streamed the hearings online. Over six million are watching the daytime hearings live, with millions more catching up in the evening recaps.
Grand Jury
The January 6th Committee hearings aren’t a criminal trial. They are more like a Grand Jury investigation.
A Grand Jury is one way our justice system investigates crime. Much like the January 6th Committee, a grand jury hears the “prosecutors” side of the case, without opportunity for defense. They hear witnesses, presented by the prosecution. And an investigative grand jury can, like the Committee, subpoena further witnesses and require them to testify under oath. Grand juries do not determine guilt, their role is to decide whether there is “probable cause” to believe a crime has been committed. If they find “probable cause”, they bring charges against the perpetrators, sending them to criminal trial.
So the January 6th Committee is presenting their evidence to the Congress, and also to the American people. In fact, they are serving the purpose of the prosecution for a grand jury of the American people, presenting the evidence of “probable cause” that crimes were committed, crimes even at the highest level, by the President of the United States. And it’s up to the American people to determine whether to “indict” or not.
No Precedence
There is no legal precedence for indicting a former President. The Department of Justice is running a parallel investigation of the Insurrection right now. Anecdotal evidence indicates that that the Department had not reached the White House, they seemed as surprised as everyone else at the testimony of Cassidy Hutchinson. So the Committee is forcing Justice to move ahead, and look at the ultimate possibility: bringing charges against a former United States President.
Americans have a saying: all men are equal in the eyes of the law. But, of course, that’s not really true. We know throughout our history that the law is often enforced unequally. Bill Cosby was treated differently than “Joe average”. While we believe that our laws apply equally, we also not that “rank hath it’s privilege”.
And there are good reasons why former Presidents of the United States require a higher standard for criminal indictment. We watch the parade of other former world leaders who go from the pinnacle to the jail cell, and wonder how much of that is their conduct, or just their political opponents getting revenge. The United States pardoned Richard Nixon, forgave Bill Clinton, and held no one responsible for the torture of the Bush Administration.
And there is the practical consideration of how a convicted former President would be punished. Does he go to jail? Does his Secret Service detail go with him? What about all of the secrets he knows? How compromised would our national security be, even in a “country club” minimum security “white-collar camp”?
Acceptable Behavior
But most importantly, what about the tens of millions of Americans who still believe in the former President. It isn’t just creating a martyr, but literally putting their “hero” in jail. As the Republicans in Congress have made it clear; they intend retribution. If the Republicans retake the House, we expect a “reverse” January 6thCommittee, searching for the “crimes” of Nancy Pelosi, Adam Schiff, and, of course, Liz Cheney. If Donald Trump is convicted of crimes, should Joe Biden be wary?
Former prosecutors make it clear – they follow the evidence wherever it leads them. The “grand jury” presentation of the January 6th Committee is leading us, Americans, to indict the former President of the United States. The Department of Justice will reach its own decision to bring charges or not. For the sake of the future of our Nation, I hope they decide to indict Donald J Trump. But if the Department of Justice doesn’t, it will be up to the American people to use the only “trial” they have available. They must turn their back on him, and his supporters, at the ballot box. There can be no middle-ground: a vote for a person who still supports Donald Trump, is a vote to allow all of the lawbreaking and anti-American actions of Trump to go unpunished.
What kind of America do you want?
