In the Sunday interview, Trump was referring to how Cheney and the “committee of political thugs” deleted all the evidence from their investigation: “Cheney did something that’s inexcusable, along with [Chair Bennie] Thompson and the people on the un-select committee of political thugs and, you know, creeps.”
He added, “Cheney was behind it. And so was Bennie Thompson and everybody on that committee. For what they did, honestly, they should go to jail.”
I have been one of the most vocal critics of the J6 Committee, having written over a dozen columns on their misrepresentation of evidence, false claims, burying of evidence, and political bias. I consider the J6 Committee to be not just a colossal failure but a missed opportunity for a bipartisan look at that tragic day. I also fully support the effort of the House committees to finish its own investigation into the security failure at the Capitol and the record of the J6 Committee.
Having said that, these are ethical and political failings, not criminal violations. Politicians routinely distort facts on both sides of scandals, including Presidents Biden, Trump, and Obama. We have elections to allow the public to hold such politicians accountable. In the case of Liz Cheney, the people of Wyoming overwhelmingly removed her from office.
Cheney’s work on the committee was rife with false claims and the manipulation of evidence. What could have been her finest hour in forcing a balanced and honest approach to the investigation proved to be her undoing (at least with her prior political base).
Members, however, are protected from prosecution for expressing their opinions or advancing legislative measures. This includes Article I, Section 6, Clause 1, which states that members of Congress “shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
The Supreme Court has held that “to the extent that [congressional officers] serve legislative functions, the performance of which would be immune . . . if done by Congressmen, these officials enjoy the protection[s] of the Speech or Debate Clause.” Doe v. McMillan, 412 U.S. 306, 320 (1973).
More importantly, the omissions and unfairness of the process do not constitute crimes.
That brings us to the focus of Trump’s remarks: the alleged destruction of evidence by the Committee. Over a hundred files were allegedly destroyed, though Thompson insists that they were not required to be preserved.
It does appear that the Committee may have violated the House’s archiving rules. However, this is not ordinarily a case for criminal prosecution. These rules have sufficient room for interpretation to make any such claim difficult to prosecute. Moreover, the responsibility of any given member of the Committee for such violations is doubly difficult to establish.
Clearly, a false statement to federal investigators or an effort to obstruct an investigation can be separate criminal violations, but there is no indication of such allegations.
Most importantly, presidents do not send people to jail. Juries and judges do that. We have the oldest and most successful constitution in history. J6 Committee members, like all citizens, are fully protected under that system.
Trump’s statement, however, has given a boost to his critics who are trying to preserve the narrative that blanket preemptive pardons are needed to protect his political opponents. As I recently wrote, some are suggesting up to thousands of such pardons.
In a statement to The New York Times, Cheney immediately used Trump’s statement to keep the narrative alive:
“This was the worst breach of our Constitution by any president in our nation’s history. Donald Trump’s suggestion that members of Congress who later investigated his illegal and unconstitutional actions should be jailed is a continuation of his assault on the rule of law and the foundations of our republic.”
The media is widely reporting Trump’s statement and omitting his prior insistence that he was not going to unleash a retributive campaign against political opponents.
Trump gave his critics a windfall benefit, which they can now cite as the basis for the blanket pardons. The press and pundits have been dreading the rather awkward prospect of democracy not ending as predicted or the chance that this is not (as figures like Cheney claimed) our last election. The “white knight pardons” are a way of arguing that Biden prevented the collapse.
In my book, “The Indispensable Right: Free Speech in an Age of Rage,” I discuss how “rage rhetoric” has long been a part of our political debates and elections. The danger is that “rage rhetoric” can become state rage, as shown repeatedly throughout history.
President Trump just won not just both houses of Congress with the White House, but also the popular vote. That victory was not the result of rage rhetoric, but the promise to move beyond these divisions to achieve progress on issues ranging from the border to the economy. Trump can now cement such a legacy or destroy it by fueling our divisions.
The J6 Committee is not going to jail. The question is where our country will be going and whether President Trump can use this election to help unify this country.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”