The nine-member House panel that ultimately handed down a criminal referral for President Donald Trump in the January 6 Capitol riot are appearing more like "actors who refuse to leave the stage" while presenting no clear, new evidence of a criminal act, one legal scholar argued Monday on Fox News.
Professor Jonathan Turley told "America Reports" the panel, led by Rep. Bennie Thompson, D-Miss., offered a weak case in terms of prosecutable offenses, adding that the Justice Department is not required to act on the congressional referral.
Thompson's committee took a risk by putting forward a referral, he said, because the DOJ could respond by contradicting its claims of criminal conduct.
"It's not obvious -- this committee again promised that there would be new evidence being displayed today. There were a couple of videos that we had not seen before, but there was no direct new evidence of a criminal act by the former president," Turley said, adding Trump's behavior may not have been criminal but was likely ill-advised and "reprehensible."
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Instead of producing new, incontrovertible evidence, Turley said, the panel rehashed a lot of what the past several hearings had covered, but this time attached a criminal referral to their presentation.
If the Justice Department were to act on the committee's referral, however, they could seek a trial based out of the District of Columbia, which could produce a "favorable" jury for the government's case.
"The problem is, I don't think these convictions on this evidence would likely withstand judicial scrutiny. The biggest problem are those counts that turn on the president's speech," Turley said.
"That speech, in my view, was protected under existing Supreme Court cases like Brandenburg [v. Ohio]. It would not meet the standard the Supreme Court has set out for the criminalization of speech."
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However, if Trump were to be convicted based on the committee's case, the government may not have the same luck if he appeals.
Turley also looked at the future of the committee and its case against Trump, as the House will flip to Republican control in January – and the two Republicans on the panel, Liz Cheney of Wyoming and Adam Kinzinger of Illinois, will no longer be in Congress.
A GOP House could try to rescind the referral, but the DOJ is likely to act or not act based on its own judgment either way.
"You've got a bunch of folks that are repeating exactly what they have said now in repeated hearings. And each time they've they've said, we're going to be bringing in some new, powerful evidence and then they repeat it. You need more than that for a prosecution. You need more than mere repetition," he said.
Some other members of the committee will also be out of Congress by January: Virginia Democrat Elaine Luria was upset by Rep.-elect Jennifer Kiggans, R-Va., last month and Rep. Stephanie Murphy of Florida retired.
Thompson, Reps. Adam Schiff, Pete Aguilar and Zoe Lofgren of California, along with Maryland Congressman Jamie Raskin all were re-elected.
House Minority Leader Kevin McCarthy, R-Calif., has said if elected Speaker, he will prevent Schiff from remaining on another key panel, the House Select Committee on Intelligence – where he is currently chairman.
During the hearing, Raskin said future generations will look back favorably on Thompson and the committee's work.
