The J6 Referral Falls Short of a Credible Criminal Case

The J6 Referral Falls Short of a Credible Criminal Case. By Jonathon Turley, who is no Trump fan.

This week the January 6th Committee voted to make criminal referrals to the Justice Department, including the proposed indictment of former President Donald Trump.

However, the Committee’s splashy finale lacked any substantial new evidence to make a compelling criminal case against former President Donald Trump. The Committee repackaged largely the same evidence that it has previously put forward over the past year. That is not enough. …

While still based largely on the failure to act, Rep. Adam Schiff (D., Cal.) insisted that “if that’s not criminal, nothing is.” The opposite may be true from a First Amendment perspective. If the failure to act is criminal, it is hard to see what would not be criminal under this standard. …



The fact is that the J6 Committee failed to change many minds largely because of what was on display in the final public meeting. It was the same highly scripted, one-sided account repeated mantra-like for months. There is justifiable anger over these accounts, but this hearing was billed as presenting the case for criminal charges. It missed that mark by a considerable measure. …

Major media from the Washington Post to National Public Radio routinely refer to the riot as an insurrection despite a deep disagreement over the characterization of the criminal conduct. The media unrelentingly echoes this one view despite polls showing most citizens view that day as a reprehensible “riot” motivated by loyalty to Trump.

Instead, much of the evidence cited what an official failed to do. Yet the last hearing seemed to focus on a number of things that did not occur, from a draft tweet that was not sent to an executive order that was never signed. There were discussions of appointing Trump attorney Sidney Powell as a special counsel, seizing voting machines or replacing the Justice Department’s leadership. It is a chilling list, but it is also notable in that no final action was taken on such proposals.

That is a far cry from evidence showing mens rea — “guilty mind.” However, crimes generally require both guilty minds and guilty acts. …


Keep him out of politics, that’s our racket! — Liz Cheney


The most damning evidence concerns what Trump failed to do in those 187 minutes.

However, while repeatedly omitted by the Committee, Trump told his supporters to go to the Capitol “peacefully” to support Republicans challenging the election. At 1:11 p.m., Trump concluded his speech. Around 2:10 p.m., people surged up the Capitol steps. At 4:17 p.m., Trump made his statement to stop — roughly an hour and a half later.

That speech appears protected by the First Amendment and existing Supreme Court precedent. In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.” The Trump speech, in my view, falls well below that standard for criminalization. …

At a minimum, that day was a failure of leadership — but that does not mean it was a violation of the criminal code.

It’s all a massive distraction from the rigged election that preceded it.


These people are the danger? Really?

hat-tip Stephen Neil