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Second anniversary of Jan. 6 will come at a sea change

Nearly 900 foot soldiers of the insurrection have been prosecuted to date. Not among them is the former president, held up as the plot's mastermind by a bipartisan panel set for dissolution with the coming of the next Congress.

WASHINGTON (CN) — Two years nearly to the day that they and colleagues ran for cover from an armed mob who stormed the seat of the U.S. government, Republicans will take the majority of a chamber on Tuesday.

The Justice Department now holds a criminal referral to prosecute former President Donald Trump for leading the insurrection on Jan. 6, 2021, but no obvious path exists for what is indisputably a first-of-its-kind event.

Tyler Valeska, a lecturer at Stanford Law School, said in an interview that it "could be a tall task" for federal prosecutors to indict Trump even on the weight of the 800-plus-page report put out by the House select committee made up mostly of Democrats.

Valeska noted that Trump did not explicitly call for violence in his speech at the Ellipse before the riot broke out. Indeed, the then-president's exact words were "everyone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard."

A civil case looking at this very distinction is already underway at the D.C. Circuit, Valeska noted. Even the Trump-appointed U.S. Circuit Judge Gregory G. Katsas noted at Dec. 7 oral arguments that Trump’s plausibly contained words of incitement not protected by the First Amendment.

Trump's fate could also turn on the outcome of an unrelated case about the criminalization of speech taken up by the Supreme Court this year. “How the Supreme Court rules on this case could give clarity on how the justices or lower courts might treat a criminal indictment of Trump for encouraging his followers on Jan. 6,” Valeska told Courthouse News.

Representatives for the Department of Justice did not return a request for comment, nor did Trump. The former real estate tycoon has brushed off the claims against him with regard to Jan. 6 as a witch hunt. Just this week on social media he repeated the mantra that he committed no wrongdoing and that, in any case, he would have immunity as president from any liability.

Trump's attorney Harmeet Dhillon meanwhile celebrated this week the withdrawal by House lawmakers of a subpoena seeking Trump’s testimony.

“The committee waved the white flag & withdrew subpoena,” Dhillon tweeted on Wednesday.

Congressional investigators said they did not have enough time to pursue the subpoena before the committee is set to dissolve on Jan. 3 when a new Republican majority takes over.

But Trump is not off the hook yet. The Department of Justice may seek its own subpoena as its probes the committee's criminal nonbinding referral.

The investigation is unrelated to two probes Trump faces at the Department of Justice over his efforts to overturn the 2020 election, as well as for the government's recovery of classified records from Trump's personal residence in Mar-a-Lago, Florida.

U.S. Attorney General Merrick Garland appointed special counsel Jack Smith to oversee the election-related probe on Nov. 18, just three days after Trump launched his 2024 presidential campaign.

Garland attributed his decision in part to the “extraordinary” circumstances surrounding the probes and the possibility that Trump will face off again with President Joe Biden, who has signaled intent to run again.

Little information is available so far on the government's probes, and U.S. Inspector General Michael Horowitz pointed recently to “strengthening public trust” in the department as one of Garland’s biggest challenges this year.

In a 60-page report published last week, Horowitz highlighted cases stemming from Jan. 6 and the prosecution of Trump associate Roger Stone for obstruction and other offenses linked to the FBI investigation into Russia’s 2016 election meddling.

“In these and other matters,” the inspector general wrote, “it is critical that the judgments of DOJ personnel are impartial and insulated from political influence and partisan consideration.”

With respect to the insurrection, the Department of Justice has so far brought charges against nearly 900 individual rioters.

Before releasing last week's criminal referrals, House lawmakers devoted the last 18 months to an investigation that brought testimony from more than 1,000 witnesses, upward of 1 million documents and 10 public hearings.

While largely symbolic, the congressional committee’s decision to recommend four charges against Trump – obstruction of an official proceeding; conspiracy to defraud the U.S.; conspiracy to make a false statement, and inciting an insurrection – are the first-of-its-kind to be made against a former president and if proven, are punishable by significant prison time.

If convicted on the insurrection charge, which seeks to hold Trump criminally liable for the mob that breached the Capitol, Trump would be ineligible to run for office in 2024. The count also carries a maximum sentence of up to 10 years in prison. 

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