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The Jan. 6 committee should not make political bets

Some members of the House select committee expressed concern that making a criminal referral of Donald Trump would only further politicize the Department of Justice’s investigations into the insurrection. That’s the wrong impulse.

Donald Trump speaks at a rally supporting Republican candidates in Commerce, Ga., on March 26.AUDRA MELTON/NYT

The US House select committee investigating the Jan. 6 insurrection has yet to reveal its detailed report on what it has uncovered, but one aspect of the investigation has become clear: The committee has enough evidence to make a criminal referral of Donald Trump to the Department of Justice. That’s about as far as a House panel can go in delivering justice — it can make recommendations to, or put pressure on, the DOJ, but Congress has no legal authority to compel an actual prosecution.

The legal limitations have left members of the committee in disagreement over whether or not to make a criminal referral of the former president. Some, for example, have wondered if it’s even necessary to take that step, since it wouldn’t impose any legal consequences. And others are concerned that a referral would backfire and only further politicize any criminal investigations of Trump.


But while a criminal referral of Trump might seem to many like a largely symbolic act since it has no legal ramifications, it’s still important for the committee to take that step if that’s indeed where the evidence has led them. In such a precarious moment, where truth and the rule of law are under attack, it’s more crucial than ever that every credible institution stands up for what is right — not for what is merely palpable or politically advantageous.

The reality is that any move that the DOJ makes regarding Trump — be it an investigation, a prosecution, or a decision not to prosecute — will be a highly politicized one, no matter how much people like Attorney General Merrick Garland try to avoid it. It’s unprecedented for a former president to be criminally prosecuted, and it will surely turn into a spectacle if any investigation leads to that outcome. Trump, for example, will probably try to drum up support by crying out that the Biden administration is engaging in nothing but a “witch hunt,” and Republican candidates across the board would likely try to fundraise off of it.


But inaction by the DOJ would be politicized too. Trump could, for example, point to the DOJ as proof of exoneration, as he did with the Mueller report, and Democrats would question whether the department was not influenced by political calculations. That’s ultimately why the question of Trump’s legal fate should not be about political outcomes but about the precedent being set for future presidents. As this editorial board argued last year, it needs to be made clear to every future president that breaking the law in the Oval Office will not go unpunished.

To both the attorney general and President Biden’s credit, they have mostly stayed above the fray, lending credibility to the fact that the department’s Jan. 6-related investigations are, in fact, truth-seeking efforts. And until now, the House’s Jan. 6 panel has also managed to rise above partisan bickering, which public polling has reflected: A solid majority of voters — including 40 percent of Republicans — have supported the work that the committee is doing.

That’s precisely why members shouldn’t be making decisions on how to proceed with this investigation based on political impulses. If Trump did indeed commit crimes, then the Jan. 6 committee has to make a recommendation that is based on that truth. Not doing so would only undermine the committee’s own credibility as a truth-seeking endeavor.


Representative Elaine Luria, who sits on the select committee, made clear that she thinks a criminal referral is appropriate. “I think it’s a lot more important to do what’s right than it is to worry about the political ramifications,” she said. “This committee, our purpose is legislative and oversight, but if in the course of our investigation we find that criminal activity has occurred, I think it’s our responsibility to refer that to the Department of Justice.”

That’s exactly right.

Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.