Alan Dershowitz: Jan 6 Panel’s Criminal Referral of Trump “Clearly Unconstitutional”

The House Jan. 6 committee’s referral of former President Donald J. Trump to the Justice Department for prosecution violates the U.S. Constitution, according to Harvard Law Professor Emeritus Alan Dershowitz.

The committee, comprised of seven Democrats and two Republicans, voted unanimously to refer Trump for four criminal charges during its last hearing on Dec. 19, including one charge that would prevent him from ever holding office again.

“In my view, it’s clearly unconstitutional,” Dershowitz told Just the News on Monday. “Article One limits the power of Congress through legislative actions. This is not a legislative action, naming a specific individual and referring them to the Justice Department. It’s not legislative and it tramples on the authority of the executive branch.”

The charges the committee recommended included insurrection, obstruction of an official proceeding, making a false statement to the federal government, and conspiracy to defraud the federal government.

Under U.S. law, “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

As of yet, no one has been charged with insurrection in relation to the Jan. 6, 2021, Capitol breach, though some defendants have been convicted of or are facing seditious conspiracy charges.

According to Dershowitz, the 14^th Amendment does allow for Congress to act against an individual if that person was engaged in an insurrection or rebellion like the Civil War, but the committee did not act under that provision.

Adding that it was his belief that the Justice Department would likely accept and then ignore the referrals, the lawyer noted: “Remember, they now have a special counsel. They have the ability to investigate. They have a much higher standard of prosecution than Congress does. So, they will politely ignore what Congress has said.”

Trump Responds

Following Monday’s hearing, Rep. Jamie Raskin (D-Md.), a member of the Jan. 6 committee, explained the panel’s reasoning in making the referrals.

“Our criminal referrals were based on the gravity of the offense, the centrality of the actors, and the evidence we had available to us. There were undoubtedly other people involved, but we were stymied by virtue of a lot of people refusing to come and testify, refusing to give us the information they had, or taking the Fifth Amendment. So, we chose to advance the names of people where we felt certain that there was abundant evidence that they had participated in crimes.”

Trump, however, dismissed the charges in the criminal referral as “fake” and an attempt to keep him from running for president again in 2024.

“The people understand that the Democratic Bureau of Investigation, the DBI, are out to keep me from running for president because they know I’ll win and that this whole business of prosecuting me is just like impeachment was—a partisan attempt to sideline me and the Republican Party,” he said in a statement shared via Truth Social.

Trump also contended that the committee’s move would make him stronger, stating: “These folks don’t get it that when they come after me, people who love freedom rally around me. It strengthens me. What doesn’t kill me makes me stronger. Americans know that I pushed for 20,000 troops to prevent violence on Jan 6, and that I went on television and told everyone to go home.”

In his speech at The Ellipse on Jan. 6, 2021, Trump encouraged his supporters to “fight like hell”—a remark that the Jan. 6 select committee has often cited as evidence that he intended to incite violence at the Capitol.

However, in a less-publicized statement from the speech, the former president also stressed that his desire was for the crowd to “peacefully and patriotically make [their] voices heard.”

Further, after the situation at the Capitol had deteriorated to the point of violence, Trump released a recorded statement urging the protestors to “go home, and go home in peace.”

“I know your pain; I know your hurt,” the then-president said. “We had an election that was stolen from us. … But you have to go home now. We have to have peace. We have to have law and order. We have to respect our great people in law and order.”

Legislators Weigh In

As news of the committee’s referrals spread on Capitol Hill, lawmakers shared their perspectives on the matter, including Senate Minority Leader Mitch McConnell.

“The entire nation knows who is responsible for that day. Beyond that, I don’t have any immediate observations,” the Republican senator said in a statement, according to The Hill.

McConnell previously criticized Trump for the events of Jan. 6 in February 2021, after the former president was acquitted on the impeachment charge of inciting an insurrection.

“There is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said at the time, after voting to acquit Trump on the grounds that he no longer held the office.

Meanwhile, Rep. Judy Chu (D-Calif.) weighed in via Twitter, stating: “No one is above the law. I’m proud of my colleagues on @January6thCmte for their tireless work defending American democracy and the Constitution.”

Others, however, were less complimentary of the committee’s work.

Rep. Alex Mooney (R-W.Va.), for instance, criticized what he described as the panel’s “relentless assault” on the former president.

“The continued demonization of President Trump is an attempt to cover up for the disastrous open border, reckless spending, and projecting American weakness abroad policies of President Joe Biden,” Mooney contended in a statement.

Likewise, according to The Hill, incoming Senate Republican Conference Vice Chairwoman Shelley Moore Capito (R-W.Va.) said the work of the Jan. 6 committee was “obviously politicized,” adding, “I never heard of Congress instructing [the Justice Department] in that way.”

In addition to Trump, the Jan. 6 select committee also recommended a formal ethics investigation into the actions of House Minority Leader Kevin McCarthy (R-Calif.) and fellow Reps. Jim Jordan (R-Ohio), Scott Perry (R-Pa.), and Andy Biggs (R-Ariz.) in relation to the Capitol breach.

The Epoch Times has reached out to the Jan. 6 select committee. The Justice Department declined to comment.

Samantha Flom is a reporter for The Epoch Times covering U.S. politics and news. A graduate of Syracuse University, she has a background in journalism and nonprofit communications.
Contact her at [email protected].

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