Speculation swirled over the weekend about whether Donald Trump would face criminal charges as a result of the Jan. 6 attack after it became clear the select committee was making a case to prove his various misdeeds.
The focus was on the committee’s chairman and vice chairman, who apparently took opposing positions from most of their respective parties on whether the committee itself would formally call for Donald Trump’s impeachment.
“No, you know, we’re going to get the facts. If the Justice Department looks at it and assumes there’s something that needs further review, I’m sure they will,” Democratic caucus chairman Bennie Thompson said. he told reporters when asked over the weekend if lawmakers would issue a formal referral.
A day later, Republican Vice President Liz Cheney responded on Twitter: “The January 6 Select Committee has not issued a finding on possible criminal references. We will announce a decision on this at the appropriate time.”
Their petty disagreement aside, it seems clear that the coming days and weeks will end with a new torrent of evidence being made public that will suggest, if not prove, that Donald Trump lured thousands of would-be rioters to the capital with false information. charges that almost everyone around him found illegitimate and encouraged them to violence before abdicating his own duties to manage the police response.
That raises obvious questions: Will lawmakers on the committee file criminal referrals for crimes in addition to the contempt charges lawmakers on the panel have brought against some of Trump’s closest allies? And if they do, what happens next?
The answer to the last question is complicated, and for that reason many analysts have avoided making predictions about whether Donald Trump will actually end up on the wrong side of an impeachment as a result of the committee’s efforts. The power of Congress when it comes to criminal referrals is a matter of debate in itself.
If the committee were to proceed, a referral by its members would go through a much shorter process than the panel’s previous moves to hold accountable potential witnesses who refuse to cooperate with their subpoenas. Those criminal contempt references went through a vote on the full House floor, where the 435 voting members had a chance to weigh in. The referral is then potentially sent to the Justice Department, though there is some disagreement between lawmakers and the agency itself as to whether the DOJ is actually required by law to hold a referral in contempt.
But a contempt referral process is specifically specified in the House’s rules, an elevated status that doesn’t exist for referrals for other criminal acts. The House generally has no law enforcement authority and as such rarely makes actual criminal references to the Justice Department, which itself maintains a very proud history of independence from influence coming from Congress or the House. White.
Individual House committees are free to send letters to the Justice Department at any time requesting the agency; Republicans have used this move in 2016, when two committees asked the agency to launch an investigation into Hillary Clinton for perjury after she was accused of lying during the Benghazi hearings.
These references don’t even require a committee vote to be submitted; Member groups or even individuals can submit these requests, which basically carry no more weight than requests from private citizens. The primary purpose of these referrals is to generate political pressure against the DOJ to take action, an effort with questionable success rates. The Justice Department remains free to make a decision as to whether to pursue criminal charges against individuals, whether or not a referral is submitted.
Don’t forget: The Justice Department is also conducting its own investigation into January 6. Hundreds of Americans have been charged for their part in the attack itself, and Attorney General Merrick Garland has made it clear that his agency plans to arrest anyone. found to be remotely responsible for the responsible attack.
“We will follow the facts wherever they lead us,” the attorney general warned in January. “The actions we have taken so far will not be the last.”
It remains unlikely that the famously discreet Justice Department will give any hints about its plans to potentially launch its own formal criminal investigation into Donald Trump before such a move occurs. What the committee can do, however, is try to win the Justice Department’s love of impartiality by continuing to highlight the testimony and evidence presented by Republican officials while maintaining the collegial working relationship between the Democrats on the panel and their only two Republican members.
The Justice Department has reportedly already requested at least some of the evidence collected by the panel, according to The New York Times.That suggests one thing: that the agency, like many Americans, is quietly listening to the committee’s case and weighing its options as the former president plots a return to political power.