January 6 committee Trump subpoena could backfire, hurt DOJ's 'sedition' cases against rioters: Ex-prosecutor
The Jan. 6 committee will likely be reconstituted or disbanded depending on the outcome of the midterm elections
{{#rendered}} {{/rendered}}The House January 6 Committee's likely final hearing under its current composition ended with a vote to subpoena former President Donald Trump, which one top federal ex-prosecutor said could actually hurt the Justice Department's multiple serious cases against alleged rioters.
Former U.S. Attorney for the Southern District of New York Andrew McCarthy told Fox News shortly after the committee approved a subpoena that the Biden DOJ has been working independently of Congress to prosecute a handful of rioters for "seditious conspiracy" – that is conspiring to overthrow the sitting government.
"It's not a criminal referral yet. I think [Mississippi Democratic Congressman Bennie Thompson and his committee] want to do the testimony part first – and then [Trump will] tell them basically to pound sand and then they'll try to go into court and… litigate that," McCarthy said.
{{#rendered}} {{/rendered}}"What I'd like to make clear about the referral is that the Department of Justice couldn't care less whether the Congress makes a criminal referral or not. The Justice Department has been looking at January 6 for almost two years. They have measures to exploit to get information about it that are superior to the committee's."
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Chairman Bennie G. Thompson, D-Miss., center, flanked by Rep. Zoe Lofgren, D-Calif., left, and Vice Chair Liz Cheney, R-Wyo. ((AP Photo/J. Scott Applewhite))
Seditious conspiracy itself has been a rare charge over the nation's history, with select cases like the prosecution of Puerto Rican nationalists in the 1930s.
{{#rendered}} {{/rendered}}A total of 11 January 6 defendants have been charged with seditious conspiracy, including Elmer "Stewart" Rhodes III, founder of the Oath Keepers organization.
McCarthy appeared to cite Rhodes' trial, saying federal prosecutors have not named Trump as the most basic level of "unindicted co-conspirator" because they actually want to keep his name as far from the proceedings as possible.
Being the sitting president at the time of the riot, McCarthy said, injecting Trump into the prosecution as an alleged leader destroys the concept that defendants were acting in a seditious way against the government because Trump then was the head of government.
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Virginia Democratic Rep. Elaine Luria speaks as the House select committee investigating the Jan. 6 attack on the U.S. Capitol holds a hearing. (AP Photo/J. Scott Applewhite, File)
"[T]hey don't have evidence that he intentionally wanted force to be inflicted against the Congress. So the committee is trying to say that Trump is the center of everything, and without him, there wouldn't have been this violent attack." McCarthy said.
"And down the street, the Justice Department in a trial is basically staying a million miles away from Trump, because if Trump is the center of the universe, they can't prove seditious conspiracy, which is a conspiracy to make war against the government."
{{#rendered}} {{/rendered}}"You don't want to give the defense a defense that they were acting at the behest of the head of the government, the president."
Washington Examiner columnist Byron York later added that Rep. Liz Cheney's motion to refer Trump for a subpoena is mostly moot for the twofold reason that the upcoming end-of-term will shuffle the members of the committee and the potential that a Republican-led House would simply disband the committee.
{{#rendered}} {{/rendered}}Former President Donald Trump speaks at Trump National Golf Club in Bedminster, N.J., Wednesday, July 7, 2021. (AP Photo/Seth Wenig)
"It's 26 days before the election. It appears that Republicans are going to win control of the House. And the committee is gone. They have no authority to do anything more. And so shortly before the election, it's absolute theater," he said.
Cheney, the vice chairwoman, lost her primary to attorney Harriet Hageman in Wyoming. Republican member Adam Kinzinger of Illinois is not seeking re-election, neither is Democrat Stephanie Murphy of Florida.
{{#rendered}} {{/rendered}}While Thompson remains in a safe Democratic seat in Mississippi, as does Burbank, California's Adam Schiff, other committee members, including Virginia Democrat Elaine Luria of Hampton Roads, are in swing or GOP-friendly districts ahead of what some pundits predict may be a "red wave."
York added that the committee notably hired a former ABC News president to purportedly choreograph some of the proceedings, and being in the television business, a "climax [or] tease" would make sense for "the next episode."
"[T]he subpoena of the president is entirely theatrical," he suggested.