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Senate Democrats are second guessing whether Trump should be indicted

By Sarah May on
 December 25, 2022

Though the House Select Committee probing the Jan. 6 Capitol unrest enthusiastically voted to issue criminal referrals to the Justice Department (DOJ) against former President Donald Trump, it increasingly appears that Democrats in the Senate are far from convinced in the wisdom of such a move, as The Hill reports.

As NBC News noted last week, the House panel has recommended that the DOJ consider charging Trump with offenses including obstruction of an official proceeding, conspiracy to defraud the federal government, conspiracy to make a false statement, and inciting or assisting those in an insurrection.

Senators advise caution

Despite the House committee's obvious fervor to see Trump prosecuted, Democrats in the Senate are pursuing a more measured course of action, with some suggesting that the “high bar” for success in such an undertaking is perhaps a sign to slow down.

Sen. Chris Murphy (D-CT) is among those treading carefully, saying, “I think you should be careful about prosecuting former presidents. I think it's OK to have a high bar when it comes to bringing charges against former chief executives.”

“If there's clear and convincing evidence then the Justice Department should proceed, but they should be pretty careful about doing so,” Murphy added.

Illinois Democrat Sen. Dick Durbin also has conflicting thoughts on the situation, saying, “There's risk on both sides. What [Trump] would do in reaction to [a prosecution], I can't tell you.”

“Our failure to acknowledge his role in this criminal activity would be an omission on our part,” Durbin continued.

“Totally different standard”

Further underscoring Democrat hesitancy regarding a possible Trump prosecution were comments from Sen. Richard Blumenthal, who said, according to The Hill, that the House panel's recommendation is merely “a referral” and “doesn't dictate what the Department of Justice can do.”

“There's a totally different standard for a referral and a prosecution,” Blumenthal declared. “I think the referral is based on compelling, powerful evidence of culpability, but the Department of Justice will have to make its own decision.”

Because the standard to obtain a criminal conviction is so high – evidence beyond reasonable doubt – many Democrats worry that an acquittal in a case against Trump would spur him to portray himself as fully exonerated, something they clearly wish to avoid.

“Empty” gesture

Though certainly no friends of Trump, members of the editorial board of National Review were also unconvinced that the House committee's referrals are of any real utility.

Noting that the panel's decision was “at best an empty political gesture,” the editors emphasized that they carry no practical force of law and are utterly nonbinding.

They went onto explain that since the Justice Department has already tapped Special Counsel Jack Smith to probe Trump's involvement in the Capitol unrest and his alleged violations of document retention requirements, the committee's referrals could do their cause more harm than good.

According to National Review, the referrals themselves are fodder for Trump to contend – if ultimately prosecuted – that the outcome was a politically-motivated one and not one that followed the facts.

Trump responds

As The Hill reported separately, it did not take long for Trump to issue a response to the House panel's criminal referrals to the DOJ and explain that the Democrats' actions are having the opposite effect to the one they likely intend.

“These folks don't get it that when they come after me, people who love freedom rally around me. It strengthens me. What doesn't kill me makes me stronger,” said Trump on his Truth Social platform.

Suggesting that the House panel's allegations against him were previously adjudicated in his favor, Trump added, “The Fake charges made by the highly partisan Unselect Committee of January 6th have already been submitted, prosecuted, and tried in the form of Impeachment Hoax #2. I WON convincingly.”

“The people understand that the Democratic Bureau of Investigation, the DBI, are out to keep me from running for president because they know I'll win and that this whole business of prosecuting me is just like impeachment was – a partisan attempt to sideline me and the Republican Party,” said Trump, in a likely preview of his broader message to supporters should a DOJ prosecution ultimately commence.