Unequal justice: The January 6th Select Committee's 'Crime and Punishment' moment

Unequal justice: The January 6th Select Committee's 'Crime and Punishment' moment
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The most surprising thing about the final report of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol isn’t the mountain of evidence of Donald Trump’s criminality that it contains nor the criminal referrals it makes to the Justice Department, but its readability. According to The New York Times, at least a half dozen publishing houses are releasing their own editions of the 845-page tome. On a December 22 broadcast, MSNBC host Lawrence O’Donnell nailed it when he remarked, “This is the way a great novelist would lay out this story.”

But it isn’t just any novel the report calls to mind. The closest approximation is Fyodor Dostoevsky’s classic psychological drama, Crime and Punishment.

Both the great novel and the report are constructed around a tortured central character who thinks he is above the law. Dostoevsky’s dark protagonist Roidon Raskolnikov kills an elderly pawnbroker and her half-sister and then struggles to convince himself that murder can be justified if committed to demonstrate and secure the power of an extraordinary man. Similarly, the report’s protagonist is the forty-fifth President of the United States, who plots to overthrow his own government in a vain and desperate attempt to cling to power and glory.

I’m not the first commentator to compare Trump to Raskolnikov. New York Times columnist Maureen Dowd beat me to the punch in a 2017 op-ed penned during the Mueller investigation, where she wrote:

“Both men [Trump and Raskolnikov] are naifs who arrive and think they have the right to transgress. Both are endlessly fascinating psychological studies: self-regarding, with Napoleon-style grandiosity, and self-incriminating. Both are consumed with chaotic, feverish thoughts as they are pursued by law enforcement.”

This isn’t to say, of course, that the parallels are exact. Unlike Raskolnikov, for example, Trump will never acknowledge his culpability for the insurrection, which led to the deaths of seven people. The report, after all, isn’t a work of fiction, even if at times it might read like one with chapter headings including “The Big Lie,” “I Just Want to Find 11,780 Votes,” and “Just Call it Corrupt and Leave the Rest to Me.”

And then there is the all-important question of punishment. Raskolnikov ultimately confesses his guilt and is sentenced to prison. Trump, by contrast, remains a free man, and continues to rage on his social media platform—the ludicrously named Truth Social—against his accusers, protesting his innocence and claiming, as always, that he’s the victim of a political witch hunt.

Trump’s prosecution, at least at the federal level (he’s also under serious investigation in the states of Georgia and New York), now rests in the hands of the Justice Department and special counsel Jack Smith. The DOJ has received criminal referrals from the committee for four overlapping federal felonies committed by the former President:

  1. Obstruction of an official proceeding, referring to the joint session of Congress convened on January 6, 2021, to confirm the election of Joe Biden, and the effort to pressure Vice President Mike Pence to refuse to certify Biden’s victory;
  2. Conspiracy to defraud the United States, referring to the former president’s multi-phase scheme to overturn the election;
  3. Conspiracy to make a false statement, referring to the plan to submit false slates of electors to Congress and the National Archives; and
  4. Inciting, assisting, or giving aid and comfort to an insurrection, referring to Trump’s incendiary speech immediately prior to the riot at the Capitol and his behavior during the riot.

The committee has also referred five of Trump’s former aides and associates to the Justice Department: John Eastman, Mark Meadows, Rudy Giuliani, Kenneth Cheseboro and Jeffrey Clark. Trump, however, is the only member of the crew who has been referred for insurrection. The report singles out the ex-commander-in-chief on the insurrection charge, stating “the central cause of January 6th was one man, former President Donald Trump.”

Although the referrals are non-binding, Smith is already in the thick of investigating the insurrection and the plot to overturn the 2020 election, presenting evidence to at least two grand juries. The special counsel is also leading the investigation into Trump’s removal of top-secret government documents to his Mar-a-Lago resort in Florida.

Convicting Trump will not be easy, especially on charges related to January 6. Each of the felonies referred to the Department of Justice requires proof of criminal intent. The government will have to establish beyond a reasonable doubt that Trump knew he had lost the election and was acting with a “corrupt purpose” to obstruct the work of the joint session of Congress or, on the conspiracy referral, that he had an intent to defraud the nation with the submission of fake slates of electors.

It will be particularly challenging to prove that Trump incited or assisted the insurrection as Trump would likely mount a First Amendment defense. In its landmark 1969 decision in Brandenburg v. Ohio, the Supreme Court articulated a two-part test for punishing incendiary speech, holding that the First Amendment protects advocating the use of force or lawbreaking “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added).

Still, it’s easy to understand why the committee chose to cite Trump for insurrection. Trump knew that members of the crowd who had gathered to hear him talk were armed when he urged them to march to the Capitol to “fight like hell.” And amid the ensuing melee, he accused Pence of cowardice for not using his authority as Vice President to change the outcome of the election, seething in a Tweet, “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution…USA demands the truth!” Almost immediately after the Tweet was posted, the report notes, “the crowd around the Capitol surged, and more individuals joined the effort to confront police and break further into the building.”

Should Trump be tried and convicted of insurrection, he would face a prison sentence of up to ten years. He would also be barred from holding federal office for life.

So, what are the odds that Trump is finally held to account? Will Jack Smith prove to be Trump’s Porfiry Petrovich, the police investigator who brought Raskolnikov to justice, or will he turn out to be another Robert Mueller? We may have the answer in a matter of months.

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