On the heels of this week’s recommendation for criminal charges against former President Donald Trump by the House select committee investigating the assault on the U.S. Capitol, California Rep. Adam Schiff, a Democrat and member of the panel, said the decision came out of a “strong consensus” within the group.

“It was certainly a somber decision to make, and not one we made lightly,” Schiff told “CBS Mornings” on Wednesday. “But at the end of the day, it wasn’t difficult in that there wasn’t really a difference of opinion among the members. There was a strong consensus that the evidence supports criminal referrals.” 

“We believe that with respect to inciting an insurrection and conspiracy to defraud and obstruction of an official proceeding, conspiracy to lie … that Donald Trump committed all of these offenses,” the congressman continued. “And as the Congress itself was the victim of some of them, our democracy, all of them, that we had an obligation to report what we knew to the Justice Department.”

The House committee’s probe lasted roughly 18 months, and concluded on Monday with a vote to refer possible criminal charges to the Department of Justice for Trump and lawyer John Eastman for their alleged roles in the Jan. 6, 2021, attack. The panel’s criminal referrals for the former president included obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and “incite,” “assist” or “aid and comfort” an insurrection. 

The Justice Department is not obligated to bring the charges recommended by members of Congress, and Schiff said Wednesday that only time will tell whether the department will choose to go through with them.

Adam Schiff
Rep. Adam Schiff, D-Calif., February 5, 2020. 

Tom Williams/CQ-Roll Call, Inc via Getty Images

“I think that depends on whether the Justice Department lives up to what the attorney general committed at the beginning of the investigation, and that is that Donald Trump would be treated like any other American,” he said. “That there was one standard of the rule of law and that Justice Department would follow the evidence wherever it leads. Well, it’s led to Donald Trump.”

But the congressman acknowledged that the Justice Department is not beholden to the Jan. 6 committees recommendations, and suggested they may not bring charges if it is determined that “a higher burden of proof” is necessary to charge a former president. 

“Under the circumstances in which the department departs from that policy and decides, you know, ‘we need a higher burden of proof for a former president.’ And, in this case, either we’re not willing to take the risk, or we decide that it would be too divisive, it would look too political to prosecute the former president,” Schiff explained.

“The Justice Department took the position while he was in office that you can’t indict a sitting president. Now, I think that’s a flawed interpretation of the Constitution,” he added. “But if you take that position and you later decide that even when a president leaves office, you still can’t prosecute because it would be too controversial, then they’re basically immune.”

Schiff said that he believes Trump should be indicted on the charges referred by the Jan. 6 panel as long as the Justice Department “concludes that the evidence is there.”

“If they can prove that he committed crimes beyond a reasonable doubt, he should be indicted,” said Schiff. “The Founding Fathers would have never accepted the idea that a president is somehow un-prosecutable, that they can commit any crime and you can’t hold them accountable. The precedent it would set given the laundry list of likely offenses this president committed would be too dangerous, because any subsequent president could decide, ‘I can do whatever I want.'”

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