The issue of whether the Justice Department should file criminal charges against former President Trump for the deliberate fraud he perpetrated in claiming the election was stolen when he knew it was not, based on the evidence presented by the January 6 committee, has attracted increasing attention in light of Monday’s hearing. The issue has multiple dimensions. The Washington Post reports on one aspect of it, which is a bit of apparent (and maybe temporary?) division among members of the committee on whether to make a “referral” to DOJ. Protect Democracy held a briefing on the topic, with three distinguished panelists: Donald Verrilli, Kristy Parker, and Donald Ayer.

As I suggested briefly yesterday, I think we can stipulate that Trump engaged in criminally culpable conduct and still be essentially at only the beginning of the relevant inquiry on whether to prosecute. There’s a lot of discussion about the need for accountability for the wrongdoing Trump committed, but it seems that accountability necessarily must be a secondary priority to the ongoing preservation of electoral democracy itself (or republican self-government, if you prefer that terminology). Prosecuting Trump, even assuming he’s guilty, might make it harder–not easier–to sustain a free and fair election in 2024. Perhaps not, but I think that prospect must be taken very seriously, and it weighs in the balance against the understandable desire for accountability. If Trump has not lost his current level of political support at the time a criminal indictment against him would be filed, it inevitably would be viewed by his supporters as the effort of the Biden Administration to derail his potential comeback in 2024. Whether he was convicted or acquitted, the prosecution could inflame the effort of his MAGA movement to seize power in 2024 by any means necessary, including by having a potentially GOP-controlled Congress falsely declare another lost election won. My analysis of this point, to be clear, is very preliminary and tentative and meant only to argue that the matter must be considered very carefully before reaching any conclusion, which inevitably will be fraught with peril for the Republic.

For a variety of reasons, I find the analogy to Watergate imperfect. The country was much less polarized then. The nature of Nixon’s criminality (an unindicted co-conspirator in the cover-up of the break-in) was very different from the charges potentially leveled against Trump for perpetrating the “Big Lie” deliberate fraud that led to the January 6 insurrection. Don’t get me wrong: I don’t think the First Amendment offers any defense for Giuliani or others who may deserve criminal punishment from their role in the same “Big Lie” deliberate fraud that aimed to undo the valid outcome of the election. But Trump’s status as a once and potentially future presidential candidate makes prosecuting him for his attempted coup or coup-like behavior an altogether different proposition in the context of preserving electoral self-government.

In essence, I think Mitch McConnell may have gotten things exactly backwards when he argued, after Trump’s second impeachment for inciting the insurrection, that conviction on the impeachment charge was unnecessary because conventional criminal prosecution was still available. But I’m not sure that the Justice Department in an administration of the opposing party should ever attempt to prosecute a president constitutionally entitled to seek a second term if the Senate refuses to convict for the same politically rooted misdeed. In a democracy, it’s essential that a president’s own party (or at least enough of it) condemn the misdeed and foreclose the malefactor from making another run for office. That’s what hasn’t happened yet, and that’s why the nation’s democracy remains in such danger until it does.

UPDATE: Neal Katyal weighs in on this topic, expressing a pro-prosecution position, in a New York Times essay.

UPDATE 2: The Hill on “Democrats pressure Jan. 6 panel to pursue criminal referrals of Trump” includes this:

‘Not every Democrat is crazy about criminal referrals of Trump, however.

Rep. Jan Schakowsky (D-Ill.) said she supports such referrals for certain figures suspected of committing crimes. But she’s also warning Democrats to tread carefully when it comes to Trump himself.

“I would like to see some criminal referrals,” Schakowsky said. “I think there’s some question of whether or not we want to include the president of the United States right now — not because of lack of evidence, but because of how divisive it could be for our country.”’