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Tear gas is fired at Trump supporters who stormed the Capitol on Jan. 6, 2020.

Tear gas is fired at Trump supporters who stormed the Capitol on Jan. 6, 2020. (Evelyn Hockstein/for the The Washington Post)

Liberal Twitter was livid Sunday morning after a New York Times article indicated that members of the House select committee on the Jan. 6 attack on the Capitol are split on whether to include a criminal referral to the Department of Justice as part of their final report — not because they disagree about whether former President Donald Trump committed grave crimes and should be held to account, but because some lawmakers think it would look too partisan and “taint” any subsequent indictment. So a few things about that.

First, it’s true that any such referral would be mostly symbolic.

Second, it’s certainly possible that federal prosecutors are headed toward indictments regardless of what Congress does. Unfortunately for impatient observers, a Justice Department investigation headed for top-level indictments by (sensibly) starting at the bottom and working up looks, from the outside, exactly like an investigation that’s only going after low or mid-level defendants. After all, Congress has a tight deadline and doesn’t have to prove its case in court — and therefore doesn’t need to have everything perfectly nailed down before acting. For prosecutors, rushing could backfire badly.

Third, outraged liberals nevertheless have a point. We know that Trump will claim that everything is a corrupt plot against him regardless of how scrupulous the committee is about recognizing democratic norms. We know most Republicans will be inclined to agree, and it won’t really matter what the truth is. We also know Democrats will be fine with indictments and prosecutions, whether norms were observed or not. Yes, there are a handful of people who will care about avoiding partisanship. They’re not wrong. But for the most part, they simply aren’t that important.

Fourth, it really does matter that the committee, Congress in general and President Joe Biden’s administration all do what they can to rebuild and strengthen any good democratic norms that were steamrolled by Trump and his allies. It’s a very good thing that Biden has reestablished the post-Watergate separation between the White House and the Justice Department when it comes to decisions about prosecutions. But given the previous point, there’s no need — and really no reason — to worry further about heading off bad faith or even simply incorrect attacks of impropriety. In other words: Do the right thing but don’t worry about appearances.

Fifth: one big exception to that. I said that for the most part, those who are vigilant about this stuff shouldn’t matter to the committee’s decision-making. The big exception is Attorney General Merrick Garland. If the committee has good reason to believe that Garland might (mistakenly!) back off from appropriate indictments because of a misplaced sense of how important it is for his department to avoid any hint of partisanship, then the committee has to take that into account.

Sixth: At any rate, the committee seems to still be massively overvaluing its report. Obviously it’s important to share any of the underlying evidence with prosecutors. But the report is unlikely to be more than a 48-hour news story, and choices made about how to write it and what to emphasize just aren’t likely to make much of a difference. So Sunday’s flap was really misdirected. Even if the critics were correct, it just isn’t going to matter much.

And we’re still missing the one thing that might make a dent in public opinion — or at least capture the imagination of those, including within the news media, who think that the Jan. 6 attacks were bad but that it’s time to move on. It’s also the one thing the committee can do to at least potentially change the incentives for some reluctant witnesses, who might just care about taking the blame publicly when they know damaging information that could shift blame to others. Yes, I’m talking, again, about a sustained series of public hearings intended to dramatize just how much Trump’s actions from Election Day through Jan. 6 were a threat to the Constitution and U.S. democracy, and how that threat continues to this day. Where are the hearings?

Bloomberg Opinion columnist Jonathan Bernstein covers politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.


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