Subscribe to Here’s the Deal, our politics
newsletter for analysis you won’t find anywhere else.
Thank you. Please check your inbox to confirm.
Leave your feedback
What are the next steps for the Jan. 6 committee's criminal referrals against former President Donald Trump and his allies to the Department of Justice? Mary McCord of Georgetown University's Institute for Constitutional Advocacy and Protection and Jamil Jaffer of George Mason University joined Judy Woodruff to discuss.
And what are the next steps now that the committee is sending criminal referrals to the Department of Justice?
I'm joined now by Mary McCord, director of Georgetown University's Institute for Constitutional Advocacy and Protection. She's also a former Justice Department official. And Jamil Jaffer, a law professor at George Mason University and former associate counsel to President George W. Bush.
Hello to both of you again. You were here with us today when we covered the live committee meeting.
I'm going to start with you, Mary, first.
What's the overall significance of what we have seen over the course of these last 18 months and today's referral — today's meeting and recommendations?
Mary McCord, Former Justice Department Official:
Well, we have seen a massive investigation and bringing together so much evidence, testimony, much of which those of us saw when we watched the 10 different hearings.
Many of those, I was here in the studio with you, two-hour hearings, sometimes three-hour hearings. And that has all culminated in a report — and, of course, we haven't seen the full report, but even just this executive summary of the report really paints a picture that this wasn't a one-off thing. This wasn't a spontaneous demonstration at the U.S. Capitol that turned violent.
This was a concerted effort by a number of people, starting with the election, really, in many ways, even starting before the election, ceding that narrative of fraud in the election. And it built through these different multifacets of the conspiracy, as Lisa Desjardins was just discussing, between the big lie, to the pressure campaign, ultimately to the violence.
And then I think what is so unprecedented — unprecedented, of course, is actually making recommendations to the Department of Justice to bring criminal charges against the former president of the United States. We have just not seen that in our history, but it shows how much — how strongly they feel and how much accountability is important here.
And, Jamil Jaffer, yes, historic. We haven't seen this before.
So, what is your sense of what this report and these referrals say to us right now?
Jamil Jaffer, Former Senior Counsel, House Intelligence Committee:
Well, I think they tell us a story about what happened on January 6, and the lead-up, as Mary correctly said, to that day and the events of that day, and the really troubling role that the president, the former president of the United States, played in those events, stoking them, encouraging them, and ultimately bring about what happened by calling people to leave the Ellipse, where he was speaking to them, and to travel up to the Capitol, knowing that they were armed.
And so, obviously, a very troubling set of circumstances, enough for the Congress to recommend these criminal charges. Now, what's interesting, though, of course, is, Congress also sought to impeach the president previously. They succeeded in passing articles of impeachment through the House. They ultimately had a majority of votes in the Senate, but not enough to convict.
And so the question for the country is, what happens next? The president — the former president is running for office again here in 2024. And so the American people will have a chance to weigh in on that, first through a Republican primary, and then — primaries — then, ultimately, in a general election, if he's the nominee of the Republican Party.
So, Mary McCord, what is going to be different once — we know Department of Justice is already looking into so much of this.
What will be different in what they can do as they look at these referrals?
Yes, so the Department of Justice will be eagerly looking to everything that the committee provides to them, but they can also — they have already impaneled a grand jury in Washington, D.C., right?
That is a body of community members who review the evidence presented and ultimately are the people who will decide whether to vote to return an indictment. The indictment is the formal charging mechanism. And, in the course of presenting evidence to the grand jury, the Department of Justice can subpoena additional witnesses, including probably many of those who took the Fifth Amendment in front of the committee.
The department, if it disagrees with their assertion of the Fifth Amendment, can actually appeal that to a judge to say, we don't think this person actually has exposure for whatever it is we have asked them a question about, and they should have to testify.
And they also have the power, if they see fit, to grant immunity to a witness in order to get — achieve testimony. They can issue search warrants on probable cause. There are many things they can do that the committee actually didn't have the same power to do.
So they have some tools that are different, Jamil.
But my question is, also, what is the standard for determining whether something is — not only is criminal, but that there's enough evidence to go forward and prosecute?
Well, Judy, it's a great question.
Prosecutors in the Justice Department make these assessments all the time, assessing whether it's enough evidence and whether it makes sense to bring a prosecution. In this case, the attorney general has appointed a special counsel to make that evaluation, in an ideal world, independent from the politics of the situation, to make that assessment, make that judgment, and to decide whether to bring charges.
So we will see. There's a lot of evidence here. But the question is, combined with what the special counsel ready has, is that enough to bring a case and to make — to get a conviction? That's ultimately the test. And, of course, the Justice Department wants to avoid being viewed as political.
And any time you're pursuing a president on criminal charges or his close associates, there's always going to be that challenge. And we know that's coming already from the president and the folks around him.
So, Mary, are the criteria different for the Justice Department in deciding what should be prosecuted and what shouldn't?
So, certainly different than what it takes to make a referral.
Now, it's important that you can seek an indictment based on a showing of probable cause, right? So it doesn't — it's not beyond a reasonable doubt at the stage where a grand jury returns indictment. But, as a former prosecutor, that's not the level of proof you want, because to go on to trial, you need proof beyond a reasonable doubt of every element of every crime charged, right?
So, the standards for the Department of Justice, the guidelines are that you don't bring a case unless you believe you can meet that standard, that you have admissible evidence that will meet that standard beyond a reasonable doubt, and also if there's an important federal interest.
Well, here, I think the federal interest is pretty obvious. There is an important federal interest.
And, Jamil, what would you add to that? I mean, how are the criteria going to be different when those final decisions are made at Justice?
You know, I think Mary, as a former prosecutor, knows exactly the right criteria.
The one thing that's different here is the political layering on top of it. Obviously, the president, the attorney general are challenged here, knowing that this is going to be politicized. It's already been politicized by the — by the former president, by the folks that continue to support him.
And so now the question becomes, with the special counsel, will the special counsel make independent judgments? Will he have the room to do that? And, if he does, will he bring those charges, ultimately?
Because one of the questions, clearly, now — and it's being discussed, Mary — is, OK, he's running for president. Does that give him a layer of protection now?
Well, this attorney general has been clear since the very beginning in the investigation that they will follow the facts and evidence where it leads, no matter how high.
Now, having said that, Jamil is — Jamil is quite correct that this has got political significance, and the department will be worried about that. But I think this attorney general at least has said — and, again, it's right now in the hands of the special counsel, but his report will go to the attorney general. And the attorney general will ultimately make the call.
I think, if the evidence is significant enough, it will be difficult to say no.
Well, it is part of the process. We will wait to see what Justice — we may not hear as much about what's going on as the course of decision-making takes place there.
Mary McCord, Jamil Jaffer, thank you both.
Watch the Full Episode
Support Provided By: