Representative Jamie Raskin (D-MD) listens during a House Select Committee to Investigate the January 6th Attack on the U.S. Capitol meeting, at the U.S. Capitol in Washington, D.C., on Monday, December 19, 2022. (Graeme Sloan/Sipa USA)(Sipa via AP Images)

What’s so special about the criminal reference of the House January 6th Committee? As Mitch McConnell, the Republican leader in the Senate, observed, “The entire nation knows who is responsible for that day.”

True, it is the first time a former president’s conduct has been referred to the Justice Department for prosecution. But history aside, the “referral” is merely advisory and is not binding on the department, which has the sole authority to indict or not to indict Donald Trump and his alleged coconspirators.

The criminal reference was long expected and, in some ways, even anticlimactic. By a bipartisan vote, the House, in January 2021, acted to impeach Trump for much of the same conduct. The impeachment failed conviction in the Senate only because Trump was not in office at the time of the trial.

Trump has suggested that he is being placed in double jeopardy, but, like so much of what he says, that’s rubbish. The Constitution stresses that a party tried for impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to law.”

The January 6th Committee recommended that Trump be prosecuted for insurrection, obstruction of Congress, conspiracy to defraud the United States, and conspiracy to make a false statement. The insurrection rap may be difficult for prosecutors to establish because it will turn on circumstantial evidence of what the president was doing (or not doing) at various points in time. To prove criminal intent beyond a reasonable doubt is like establishing the state of someone else’s digestion.

The Justice Department has appointed the veteran prosecutor Jack Smith as special counsel to conduct its investigations of the Capitol attack and the alleged mishandling of the Mar-a-Lago documents. Smith is not obligated to act on the committee’s referral.

Of course, the January 6th Committee conducted an 18-month investigation, and it amassed a mountain of evidence. The members and staff interviewed more than 1,000 witnesses, reviewed thousands of documents, over a million pages, and put its conclusions in a compelling 154-page executive summary that identified Trump as the precipitating cause of the mob violence against the government. The full report comes later this week.

How much of the evidence the House adduced will be admissible as evidence is another question.

The committee even revealed new evidence, which will be interesting to the Justice Department, of criminal efforts to obstruct its own investigation. To the extent that any of this evidence previously escaped the attention of the DOJ, it will doubtless be given due weight by Smith as he hustles to a charging decision. “I’m sure the attorney general will welcome any new evidence the committee sends over, but the authority to indict rests with the executive branch, not Congress,” Ronald Weich, the dean of the University of Baltimore Law School, told Politico.

One objective of the January 6th Committee was to disqualify Trump from ever regaining the presidency. In her opening remarks, Liz Cheney, the Wyoming Republican and vice chair of the panel, said, “No man who would behave that way at that moment in time can ever serve in any position of authority in our nation again. He is unfit for any office.”

If charged, tried, and convicted for insurrection, Trump could be banned from holding public office. The federal criminal insurrection statute, 18 USC 2383, states that a defendant convicted under the law cannot hold “any office under the United States.” There’s similar language in 18 USC 2071 criminalizing the mishandling of government records.

But lawyers have pointed out that penalties adopted by Congress for a criminal conviction couldn’t apply to the presidency since the Constitution exclusively prescribes the qualifications for that office, namely, natural-born citizenship, 35 years of age or older, and 14 years of residency.

Then there is the beguiling language of Section 3 of the Fourteenth Amendment, a post–Civil War measure aimed at Confederate officers, which would disqualify from office anyone who has taken an oath to uphold the Constitution and engages in an insurrection or rebellion against the United States.

Forty House Democrats, led by Representative David Cicilline, have introduced a bill to bar Trump from office under the Fourteenth Amendment, but the bill is probably unconstitutional. Article I, Section 9 prohibits Congress from enacting a “bill of attainder.” A bill of attainder is a legislative act that singles out a person and punishes them without the benefit of trial. Punishment under the Constitution is exclusively a judicial act, as the Supreme Court has made clear. Congress could enact a law, creating a civil cause of action for a judicial determination that an insurrection has occurred, deciding who has engaged in it and imposing the punishment of disqualification. 

Trump has announced that he will seek the presidency in 2024, and neither the committee report nor an eventual indictment will prevent him from going forward. Meanwhile, don’t expect to hear much about the Justice Department’s progress. It tends to stay pretty quiet, if not wholly silent, on the details of ongoing investigations until it presents them in court.

James D. Zirin

James D. Zirin is a former federal prosecutor in the Southern District of New York.