Why it will be pure 'cowardice' if DOJ doesn’t indict Trump: legal expert

When the bipartisan January 6 Select Committee held its final hearing on Monday, December 19, its members voted to recommend to the U.S. Department of Justice (DOJ) and special counsel Jack Smith that former President Donald Trump be indicted on four federal criminal charges: (1) obstructing an official proceeding, (2) assisting an insurrection, (3) conspiracy to make a false statement, and (4) conspiracy to defraud the United States.

It remains to be seen what Smith, appointed by U.S. Attorney General Merrick Garland, and the DOJ will do with the Committee’s recommendations. The DOJ is presently conducting two Trump-related investigations: one on the events of January 6, 2021, the other on White House documents being kept at Trump’s Mar-a-Lago compound in Palm Beach, Florida — documents that, Trump’s critics say, never should have left Washington, D.C. But the DOJ’s investigations won’t necessarily lead to criminal indictments.

The DOJ has the option of either following or not following the January 6 Select Committee’s recommendations. But legal expert Elie Mystal, in an article published by The Nation on December 19, stresses that it will be an act of cowardice if DOJ reads the evidence presented in the Committee’s final report and opts not to prosecute Trump.

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“As many have noted, these criminal referrals legally mean jack squat,” Mystal explains. “Congress is not a law enforcement body. Congress can write the laws, but it’s up to others to determine if those laws have been violated. That’s a good thing, and the next two years of Kevin McCarthy and the Republican Congress hunting Hunter Biden’s penis pics will prove the wisdom of having at least nominal separation of powers between our political bodies and our law enforcement apparatus.”

The attorney, a frequent guest on MSNBC, continues, “Unfortunately, Merrick Garland’s Department of Justice is the law enforcement body responsible for holding the people who attacked the country accountable. Whether Trump is actually charged for the crimes the Select Committee laid out is, and has always been, up to the discretion of Garland and the DOJ. ‘Discretion’ is the key word.”

Mystal goes on to say, however, that if the DOJ decides against prosecuting Trump, it won’t be for lack of evidence. The January 6 Select Committee, he emphasizes, has given Garland, Smith and the DOJ more than enough material to work with.

“Regardless of what, if anything, the DOJ does with the Select Committee’s referrals,” Mystal writes, “we know that the Justice Department has been conducting an independent, parallel investigation into the deadly Capitol attack. And we have to assume that investigation includes looking into all potential crimes committed by the former president…. If Trump escapes charges, it won’t be because the case against him was too hard to make. It will be because the DOJ used its discretion to be cowards.”

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