This is like a couple getting married and then finding out they’re at odds on whether to have children.

That discussion should probably be held before the “I do’s” are said.

Reading this, though, I wonder if Bennie Thompson simply made a Kinsleyan gaffe by publicly acknowledging something that the committee had privately agreed to. No, they’re not going to refer Trump to the DOJ for possible criminal prosecution, but they’re also not going to advertise that fact while the hearings are ongoing lest some viewers begin to ask what the point is.

“No, you know, we’re going to tell the facts. If the Department of Justice looks at it, and assume that there’s something that needs further review, I’m sure they’ll do it,” Democratic Rep. Bennie Thompson said when asked whether the committee would refer Trump or others to the department…

Rep. Liz Cheney, who serves as vice chair of the committee, released a statement contradicting the chairman’s comments. “The January 6th Select Committee has not issued a conclusion regarding potential criminal referrals. We will announce a decision on that at an appropriate time,” the Wyoming Republican tweeted…

“You know, I haven’t seen the chairman’s statements,” [committee member Adam] Schiff told CNN’s Anderson Cooper. “We haven’t had a discussion about that, so I don’t know that the committee has reached a position on whether we make a referral or what the referrals might be. I thought we were deferring that decision until we concluded our investigation. At least that’s my understanding.”

Another committee member, Democrat Elaine Luria, said, “If criminal activity occurred, it is our responsibility to report that activity to the DOJ.” Hmmmm.

The committee could play this two ways. One is to follow Thompson’s strategy by putting the evidence they’ve gathered out there and letting the Justice Department do whatever it wants to do, with no encouragement either way from the panel itself. “It’s a public document. Anybody can have access to it. And if they [the DOJ] want, after reviewing it, to come back and ask to talk to some of the staff or the members who helped produce the report, I’m sure they will,” Thompson told CNN about the committee’s final report.

The other strategy to issue a criminal referral in the expectation that Merrick Garland won’t act on it, now that we’re approaching the midterms and public attention will soon begin to shift to the 2024 race. The closer we get to the next presidential election, the easier it gets for Trump to claim that he’s being prosecuted simply to prevent him from threatening Biden’s grip on power. No doubt that’s a factor in why he reportedly wants to announce his candidacy soon, possibly around July 4. The sooner he’s formally in the race, the more politically difficult it becomes for prosecutors to come after him.

But from the committee’s perspective, a criminal referral may operate as a sort of informal indictment. It’ll represent their considered judgment that there’s probable cause to believe Trump committed a crime by trying to overturn the election. Given the likelihood that the DOJ won’t act on that referral, that’s as close as the country’s ever going to get to an official finding that Trump broke the law.

Especially since his more hardcore fans are already hinting at fascist violence if the government dares to declare that he isn’t above the law:

The tricky part of prosecuting Trump is the fact that the federal crimes with which he’s most likely to be charged require proof of specific intent — that is, that he knew he was telling a Big Lie about the election but kept at it anyway in hopes of clinging to power. That’s hard to prove even when prosecuting a person whose psychology is normal. When you’re prosecuting someone like Trump, who doesn’t seem to process information in terms of truth versus falsehood so much as “Things I want to be true” versus “Things I don’t,” it’s exceptionally hard. Former federal prosecutor Barbara McQuade described the difficulty of proving that Trump’s “stop the steal” misconduct amounted to a conspiracy to defraud the United States:

A defense that’s used in most white-collar cases would probably be the one used here, which is proving intent. So, Trump said and did a lot of things, but it’s because he genuinely believed he had won the election and he was the one who was trying to stop fraud. He believed Joe Biden was the one who committed fraud and he was just doing everything he was supposed to do to make sure that the will of the people was being effectuated. Maybe he was wrong in the end, but he led from a good place because he believed this was true. So proving this mind-set is really hard. It’s the hardest thing that happens in white-collar cases. It’s the reason so many white-collar perpetrators are not held accountable, because you can’t read a person’s mind.

But there is this concept of willful blindness, where a jury is instructed that a person cannot ignore a high probability that a fact is true just because he wishes it weren’t so. So if there are enough people, as we heard at the first public hearing, telling him, “No, you lost. No, there was no fraud. There was no there there. It was bullshit,” at some point, most rational people are going to believe, O.K., I’m just making this up. There’s no evidence.

Essentially, if Trump were charged, he’d present the George Costanza defense:

The DOJ would need to show that Trump knew he was lying in claiming that the election was rigged. Was he? There’s reason to think so…

…but the fact that he continues to deliver long rants alleging a widespread conspiracy to this day points the other way, that he truly has convinced himself that he’s been the victim of a massive fraud. That explains what the committee was up to with yesterday’s hearing, showcasing comments by Bill Barr and Bill Stepien making it clear that Trump knew the mail-in votes would skew heavily Democratic and therefore had no reason to suspect they were the product of “ballot dumps.” At some point, after enough testimony from top advisors claiming they told him the truth about the election, his refusal to believe it amounts to willful blindness.

And yet, as an example of how hard it would be to convict him, Barr’s now-famous testimony that Trump was “detached from reality” in chasing conspiracy theories would likely help Trump’s defense. If the DOJ can’t show fraudulent intent by demonstrating that Trump knew he was lying, the case would collapse.

American law simply isn’t well-suited to constrain authoritarians whose concept of reality is what they wish it to be, not what it is. Although, as Will Saletan notes, the fact that Trump can’t tell truth from fiction is ample reason to keep him out of the White House even if it also ends up keeping him out of prison.

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