House files will gird Trump probe

The House Jan. 6 committee’s referral of former President Donald Trump for prosecution this week was as predictable as it was justified after a full review of the ugly truth of that day. Everyone involved in the dark denouement of the last administration got their chance to talk or plead the Fifth. More than 1,000 people were interviewed or provided documentation. Key testimony came from top insiders — who loyally served a boss for whom loyalty ran only one way.

But the criminal referrals, while momentous, are symbolic. They do not comprise an indictment. If they did, the “top count” against the ex-president would be inciting insurrection followed by conspiracy to defraud the U.S., obstruction of an act of Congress, and conspiracy to make false statements.

Now the decision to bring criminal charges falls to Attorney General Merrick Garland. He'll make that choice after receiving a report from the special counsel, Jack Smith, a veteran prosecutor. The greatest benefit to the Justice Department will be voluminous evidence the committee released Thursday. Transcripts now show the panel had to overcome significant obstacles: An astounding 34 Trump-team witnesses invoked their right against self-incrimination.

The prosecutors, however, face harder choices than the committee. Consider the Title 18 language: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

Will the facts meet the standard for an indictment that produces a conviction? Breaking an oath is one thing, fomenting insurrection another. Proving Trump's intent in court could be a challenge even when he's clearly reckless. Could an armed crowd have decided by themselves that his words “fight like hell” meant "attack officials at the Capitol"? Did Trump order sedition by Oath Keepers and Proud Boys — or was his incitement coated in deniability, organized-crime style?

Subversion can be divined in his speeches and tweets, the recruitment of fake electors, his denunciations of Vice President Mike Pence, the pressure on lawmakers and state officials to change results. Even Hope Hicks, Trump’s beloved assistant, swore she was told Trump refused to try to stop the rioting. Meanwhile, investigators still must find out whether Trump tried to commandeer a Secret Service vehicle to bring him to the Capitol to take part. These details matter.

The Jan. 6 committee served the nation well by constructing a detailed narrative of what unfolded. Now Smith, overseeing an investigation already underway, should act expeditiously to tell Garland whether the evidence supports criminal charges against those most responsible. If a strong case exists against Trump, there should be no reticence about charging him just because he's an ex-president seeking to be a future one.