Philippa Kaur

After 18 months investigating, the House Select Committee to Investigate the January 6 Attack on the United States Capitol held its final public meeting on Dec. 19, 2022. The panel recommended that the U.S. Department of Justice bring criminal charges against former President Donald Trump for his efforts to overturn the 2020 presidential election results.

The House committee recommended that the Justice Department pursue four main charges against Trump – obstruction of an official proceeding, conspiracy to defraud the U.S., conspiracy to make a false statement and inciting or assisting an insurrection. The committee also recommended that the House Ethics Committee sanction four Republican members of Congress who refused the committee’s subpoena requests to provide information about the events of Jan. 6.

But what does that all mean? The Conversation asked Margaret Russell, professor of constitutional law at Santa Clara University, to help explain why these recommended charges are important, where they fall short – and what could come next.

U.S. Rep. Bennie Thompson, chairman of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, talks to reporters in November 2022.
Drew Angerer/Getty Images

1. What are the biggest takeaways from these referrals?

People have wondered whether the proceedings would have any strong result. Now it is clear that the committee does not see these proceedings as primarily about making a historical record. They have done more than that.

One big takeaway is that Trump is at the top of the pile. When the proceedings began it was not clear – though many people suspected and alleged – how much he knew, when he knew it, what he said before Jan. 6, what he knew and said before the election’s certification, and whether he knew he really had not won the election. It is now clear Trump was the architect of most of this conspiracy – and the committee is urging specific accountability for him and other people who played a part in it.

It is also interesting to think about the committee urging criminal prosecution. It really means it reached the brink. This bipartisan committee, which comprised seven Democrats and two Republicans, decided unanimously that backing away from criminal charges would be a dereliction of its duty to recommend, based on what it has found. Committee members are not telling the Department of Justice what it has to do – they can’t. But in their investigatory role they concluded that in order for there to be accountability, they needed to recommend charges.

2. Do these referrals have any legal teeth?

The magnitude of these recommended charges, particularly the insurrection one, is unprecedented. Rather than saying they don’t have legal teeth, I think they certainly have very strong teeth in the sense of urging the Department of Justice to make sure that there is accountability. Accountability is a word that jumped out to me in committee members’ statements on Dec. 19 – there must be accountability, even though this committee, of course, cannot force the Department of Justice to do anything.

The charges, of trying to overthrow the government, essentially, go right to the heart of the Constitution. There is no historical precedent for this. The Justice Department’s determination to pursue the referrals would depend on the validity of the House commitee’s findings. And since the department has been doing its own investigation of Trump, it wouldn’t be starting from ground zero. The committee’s work could be added to what it has.

A rioter at the Capitol attacks on Jan. 6, 2021, holds up a bust of Donald Trump.
Roberto Schmidt/AFP via Getty Images

3. Will the new GOP Congress have any say in these referrals?

Now that the report has been handed over and the referrals made, I would imagine the Department of Justice will start considering it. And, so, when there is a difference in leadership of the House there won’t be any way to undo it. The House can conduct its own investigations, but it cannot stop the Department of Justice and it cannot undo this report and its recommendations. Attorney General Merrick Garland has clearly sent a message that the department he runs is not influenced by outside factors. And he has tried to insulate any prosecutions from accusations of political influence by appointing a special counsel to oversee the Trump investigations.

4. Were lawmakers who ignored the subpoenas legally required to obey the committee’s request for testimony?

I think the answer is yes. The Constitution (Article I, Section 5) states that each chamber makes its own rules that bind its members. The Supreme Court has underscored this constitutional power as well as the legal legitimacy of the congressional subpoena. The consequences of ignoring a congressional subpoena might ultimately wind up within the purview of the Ethics Committee, but there are consequences.

5. Does the House committee’s report increase the likelihood that Trump will be charged?

I think it makes a strong argument in the public sphere for the prosecution of Trump, which is what a lot of people have been waiting for. It doesn’t guarantee a prosecution, but it spells out, I think meticulously, why Trump is included in this and at the forefront.

The House committee’s message of accountability – that if the nation is to consider itself to be a democracy that works there must be accountability for Trump and others – was made very powerfully. As committee member Adam Schiff said on Dec. 19, “I think the day we start giving passes to presidents or former presidents or people of power or influence is the day we can say that this was the beginning of the end of our democracy.” More

The Poll Bludger reported on two Queensland polls on December 12. A YouGov poll for The Courier Mail, conducted December 1-8 from a sample of 1,000, had a 50-50 tie, unchanged since June. Primary votes were 38% LNP (steady), 34% Labor (steady), 13% Greens (down one), 11% One Nation (up one) and 4% for all Others (steady).

Labor Premier Annastacia Palaszczuk had a 41% disapproval rating (up two) and a 40% approval (down five), for a net approval of -1, down seven points. LNP leader David Crisafilli had a 31-27 approval rating (31-23 in June). Palaszczuk’s lead as preferred premier slipped to 39-28 from 41-28 in June.

Analyst Kevin Bonham strongly criticised The Courier Mail for the anti-Labor slant they put on this poll.

The first Resolve Queensland state poll, conducted from August to December from a sample of 924 for The Brisbane Times, gave Labor 37% of the primary vote, the LNP 35%, the Greens 11%, One Nation 6%, independents 7% and others 4%.

Resolve does not give two party estimates until close to elections, but Bonham estimated this poll would be 53-47 to Labor. This Queensland poll was presumably conducted with the five federal Resolve polls from August to December.

Asked whether they held positive, neutral or negative views of the leaders or were unfamiliar with them, Palaszczuk had a 39-31 positive rating and Crisafulli a 23-15 positive rating. Palaszczuk led as preferred premier by 42-30.

The next Queensland election is not until October 2024. Currently Labor appears to be just ahead, and Bonham thinks Labor would be likely to hold onto enough seats to form government with a 50-50 two party tie.

By the 2024 election, Labor will have held power since the January 2015 election, so there’s time for the polling to worsen for Labor. But Victorian Labor just retained government after eight years in power with 56 of the 88 lower house seats, up one since the 2018 election.

Read more:
Final Victorian election results: how would upper house look using the Senate system?

NSW Resolve poll on cashless gaming card

The New South Wales state election is in March 2023. We have been getting NSW voting intentions after every second federal Resolve poll. The last voting intentions was in early November, and there’s only been one federal Resolve poll since. I don’t expect NSW voting intentions until after the next federal Resolve poll.

A NSW Resolve poll for The Sydney Morning Herald, presumably conducted with just the federal December Resolve poll, had voters supporting a mandatory cashless gaming card by 62-16. However, the question wording included arguments in favour of the cashless gaming card, but none against.

If the cashless gaming card were to go ahead, 32% wanted it introduced immediately for all gamblers, 24% to have a voluntary trial of the card statewide and 19% a mandatory trial in specific areas.

By 47-28, voters thought pubs and clubs have been poor instead of good on problem gambling. By 30-26, voters trusted Labor and Chris Minns over the Liberals and Dominic Perrottet to get the right outcome on gambling reforms.

Federal polls: Essential and Morgan

In last week’s federal Essential poll, Labor led by 51-44 on Essential’s two party measure that includes undecided (51-43 in late November). Primary votes were 35% Labor (up two), 30% Coalition (down one), 13% Greens (steady), 17% for all Others (steady) and 5% undecided (down one). Respondent allocated preferences were friendly for the Coalition.

In other findings from this poll of 1,042 respondents conducted in the days before December 13, Anthony Albanese’s ratings were unchanged since November at 60-27 approval (net +33). An Indigenous Voice to parliament was supported by a 63-37 margin (65-35 in August).

Probably due to the change in federal government, 2022 was considered a good year for trade unions over a bad year by a net +13, up from -13 in 2021. Small business was up from -45 to -25 in 2022, after the end of COVID lockdowns. The Australian economy had a net -27 rating in 2022, down one point on 2021.

Thinking about 2023, 40% thought it would be better for Australia than 2022, 25% no difference and 24% worse. On economic indicators, 78-80% expected the cost of living, energy prices and interest rates to be up in the year ahead, while 43% expected unemployment to be up, 30% about the same and 18% down.

A Morgan federal poll, conducted December 5-11, gave Labor a 56.5-53.5 lead, a two-point gain for Labor since the previous week. Morgan’s polls have been better for the Coalition than others since the May election. This is Labor’s highest two party vote in Morgan polls since the election.

US Senator Kyrsten Sinema switches from Democrat to independent

Shortly after United States Democrats won the December 6 Georgia Senate runoff election to seal a 51-49 federal Senate majority, Arizona Senator Kyrsten Sinema defected from the Democrats to become an independent.

I have not seen any polls of Arizona conducted since Sinema defected, but Slate reported on a September poll that showed Sinema was unpopular with all Arizona demographics sampled. Sinema was at net -17 overall, net -20 with Democrats and net -18 with Republicans. She performed better with independent voters, but was still at net -10 with them.

Sinema is up for re-election in November 2024. Democrats are likely to run their own candidate against Sinema and a Republican. I do not know which side she will take most votes from, but it’s very unlikely Sinema will win given her unpopularity across the board.

Republicans’ worse than expected performance at the US midterm elections has resulted in some polls of the Republican presidential nomination in 2024 showing Florida Governor Ron DeSantis now leading former president Donald Trump, although Trump still leads in others. More