Why some Democrats think it’s dumb to refer the Trump case to Justice

For opponents of the Former Guy, from Democrats to Never-Trump Republicans to media mavens, the holy grail, the fantasy jackpot, is to see Donald Trump sent to prison.

And somehow it never seems to happen.

The two-year Bob Mueller probe into all Russia matters, so heavily hyped by the press, ended without a charge.

The Manhattan DA’s office seemed close to bringing business fraud charges against Donald Trump. But the new district attorney, Alvin Bragg, slammed the brakes, prompting two top prosecutors to quit, one declaring Trump guilty in his resignation letter.

And then there’s the Jan. 6 probe.

WHY TRUMP IS STILL DEFLECTING RESPONSIBILITY FOR JAN. 6-AND BLAMING PELOSI

Many liberals in media and politics are fuming that Merrick Garland hasn’t charged Trump or any of his top aides in connection with the Capitol riot. Never mind that some of these same folks denounced Trump for politicizing the Justice Department, and of course, they haven’t seen the evidence.

But the Democratic-controlled House committee is conducting a parallel investigation, and regularly either releasing or leaking damaging texts and testimony to underscore the central role of Trump, his inner circle and conservative advisers from Rudy Giuliani to John Eastman.

There is a rough consensus on the center-left – but not among Trump’s Republican loyalists – that, at the very least, the Capitol assault would not have happened without him. Had he not summoned his supporters to Washington on Jan. 6 (going to "be wild"), given that speech on the Ellipse and refused to accept the results of the election, Joe Biden would have been routinely certified as the Electoral College winner.

But it’s one thing to argue that Trump fomented the riot – and spent hours ignoring pleas to speak out against the violence – and another to say he is criminally liable. DOJ prosecutors would have to decide how they are going to win that case. 

Which brings me to a debate within the House committee. The New York Times reports that the panel is split over whether to make a criminal referral to the Justice Department.

The argument against such a move? It’s "a largely symbolic act" that "would backfire by politically tainting the Justice Department’s expanding investigation into the Jan. 6 assault and what led up to it."

What’s more, "some Democrats are questioning whether there is any need to make a referral — and whether doing so would saddle a criminal case with further partisan baggage at a time when Mr. Trump is openly flirting with running again in 2024."

To me, that logic is compelling. There are times when Congress will forward a contempt citation, or a subcommittee probe that might be news to DOJ. In this case, Garland’s department is already investigating Jan. 6 and there have been more than 700 arrests. A letter from the House adds nothing–but fuels the perception that the federal inquiry is some kind of witch hunt. 

THE MEDIA, APPALLED BY GRUESOME IMAGES FROM UKRAINE, IS TURNING HAWKISH

Trump, who has deflected responsibility by blaming Nancy Pelosi and Washington’s mayor, would use such a referral to paint himself as even more of a political martyr. And that would fire up his base, which already believes he’s being railroaded.

One House Democrat recently told MSNBC they should "do what’s right" and not worry about "political ramifications." But the House probe is by definition political, and appearances matter. Bill Barr told me and others that Trump made him look like a political lackey by publicly demanding action against political foes or in favor of allies, when the attorney general was already planning to take such steps.

SUBSCRIBE TO HOWIE'S MEDIA BUZZMETER PODCAST, A RIFF ON THE DAY'S HOTTEST STORIES

The anti-referral side also argues that a federal judge’s recent declaration that Trump and Eastman "more likely than not" committed crimes has far more weight than what a bunch of lawmakers say.

CLICK HERE TO GET THE FOX NEWS APP

The larger debate grinds on. On one side we have the part of the country that believes Trump is continuing to perpetrate the Big Lie by insisting he was cheated out of the last election as he gears up for the next one. On the other side is the part of the country that feels the Left and "Fake News" are propagating the Big Lie by not acknowledging the widespread 2020 fraud that remains unproven.

Deepening that chasm for the sake of sending a formal letter doesn’t sound like a very wise choice.