Let’s start with the words as they appear in 18 U.S. Code § 2384, defining the phrase “seditious conspiracy”:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
The law dates to 1948. The maximum penalty originally was six years, but in 1956 they increased it to 20—probably motivated by Cold War fever. Undoubtedly, the expectations of the authors of this law and its amendments were that the seditionists in question would be Communists or other enemies of the system. I’m pretty sure they didn’t imagine the category would one day include a sitting president of the United States.
But can there be any serious doubt, reading that definition, that Donald Trump is guilty of seditious conspiracy? He certainly conspired with at least one other person—indeed he conspired with the hundreds of people he urged to come to Washington because it was going to be “wild!” and then egged them on to march; he was in a place under U.S. jurisdiction; and the rest of the language—“overthrow,” “put down,” “oppose by force,” “prevent,” “hinder,” and so on—sounds like a literal description of January 6, 2021.
There’s a dispute among the members of the House January 6 committee, according to a New York Times report, about whether to file a formal criminal referral about Trump to the Justice Department. Republican Liz Cheney is in favor; she seems to want to nail Trump (while at the same time, she clearly wants to limit broader damage to her party by keeping the focus on one man). Cheney told CNN Sunday: “It’s definitely clear what President Trump was doing. What a number of people around him were doing. That they knew it was unlawful. They did it anyway.”
Democrat Zoe Lofgren is opposed, saying a formal referral doesn’t really matter. The debate, the Times reported, “centers on whether making a referral—a largely symbolic act—would backfire by politically tainting the Justice Department’s expanding investigation into the Jan. 6 assault and what led up to it.”
Lofgren is correct that a referral would have no real significance given that the Justice Department is already investigating Trump anyway (the progress of that investigation is another question). But let’s focus on that word “backfire.”
Democrats really have to stop worrying about things backfiring and just do them. Of course it may backfire. Lots of things may backfire. That isn’t a reason not to do them.
Do Republicans worry about things backfiring? Hardly ever that I can see. They just do them. Eighty jillion Benghazi hearings. Voting, as nearly 150 of them did, to deny Joe Biden the presidency. Pushing these blatantly undemocratic voter-suppression laws. They never worry about backfiring. The irony is that sometimes their zealotry does backfire on Republicans. The impeachment of Bill Clinton backfired on Newt Gingrich such that he lost his job over it. But they just keep on doing outrageous things, and their winning percentage, tragically, is pretty good.
In other words: The backfiring worry is very overstated in a hyper-polarized age. Of course a formal referral will infuriate Trumpists. And it will give Trump a little fodder to complain about a partisan “witch hunt.” But Democrats can counter that the committee has two Republicans. Liberals will nod, conservatives will be enraged, and most voters in the middle will shrug. It’s a relatively minor thing, this referral. There’s no harm in doing it.
What’s more interesting is how the committee is going to wind this down in the coming months. Members have been hearing hours and hours of testimony. Investigative staff have been poring through electronic communications. The leaks so far have been close to masterful, conveying a sense of momentum and making careful readers wonder, “Gee, how much more do they have?”
I bet a lot. They’re still deciding who their big witnesses are going to be in May and June. But if those hearings have a few bombshell moments (perhaps relating to exactly what Trump did and said during those seven hours), to be followed by a full and thorough report, and then a formal referral on Trump because by that time the evidence will be so overwhelming as to make a referral seem like a foregone conclusion, that will be powerful.
Those seven hours notwithstanding, we know what Trump did. He did it right before our eyes. He urged a rowdy crowd to march to the Capitol to force the vice president to break the law. He called a state election official in Georgia and instructed him to break the law. He belongs in a house, all right. But it isn’t white.