Jan. 6 committee wrestling with criminal referral for Trump

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The Jan. 6 committee has amassed so much evidence in the nearly 500 days since Donald Trump incited an insurrection at the U.S. Capitol that congressional investigators are weighing a criminal referral to the Department of Justice for the twice-impeached ex-president. 

Whether they ultimately issue that referral is a question that hangs heavy in the air over the probe and members are internally split on the path ahead, according to a report by The New York Times from Sunday. 

Nonetheless, after some 800 interviews and extensive cooperation from those orbiting the Trump White House and campaign in the runup to Jan. 6,  the committee’s bipartisan leadership has said the evidence strongly indicates Trump illegally obstructed Congress—again—and committed fraud against the American people as he and those who sought to keep him in power worked to pull off a scheme that hinged on his lies about the outcome of the 2020 election.

During an interview on CNN following the Times report, committee Vice Chair Liz Cheney, a Republican ousted from GOP leadership for her participation in the probe, brushed off the notion that division was stewing among members. 

The sources in the Times said some lawmakers on the committee are at odds over whether it is actually necessary to throw their weight behind a criminal referral for the ex-president to the Department of Justice. 

That referral is mostly symbolic as the committee has acknowledged countless times over the last year in court and to the press that it simply does not have the authority to prosecute Trump.

A criminal referral could also potentially trigger a lengthy series of delay tactics from Trump or his allies in Congress that would draw time and resources away from key areas of the probe. 

From the Times:

The members and aides who were reluctant to support a referral contended that making one would create the appearance that Mr. Garland was investigating Mr. Trump at the behest of a Democratic Congress and that if the committee could avoid that perception it should, the people said.

This assessment on optics reflects, at least in part, the scars left in Washington from the deeply contentious and circus-like atmosphere created in the wake of Trump’s first impeachment for abuse of power and obstruction of Congress. 

Prosecution in this case, as a matter of constitutional fact, must be left to the proper—and separate—channels at the Department of Justice.

To that end, over the sprawl of its inquiry the select committee has issued subpoenas aplenty and filed lawsuits to claw back or expose various records from integral Trump White House and campaign officials. In this process, it has left a trail of morsels for the Department of Justice to consider as that department conducts its own separate and massive review of Jan. 6.

Take the case of John Eastman, the Trump attorney who wrote a memo proposing how to overturn the election through an unconstitutional pressure strategy involving former Vice President Mike Pence. 

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When a federal judge in California finally reviewed the emails Eastman sought to keep away from the committee during his tenure at Chapman University, the judge found information that led him to believe Trump and Eastman “more likely than not” engaged in a federal crime. 

The ruling was a boon for transparency overall, to be sure, but it also provided the Department of Justice with something deeply important, at least in the eyes of some members of the Jan. 6 committee: A federal judge’s ruling, they reportedly said, would simply mean more in the eyes of Attorney General Merrick Garland. 

Once the committee completes its investigation, it will issue a report on its complete findings and recommendations. That report alone may have so much information and relevant evidence in it that the Department of Justice could use it as its guide to bring criminal charges. 

Rep. Zoe Lofgren, a California Democrat who previously served on both impeachment inquiries for Trump and for former President Bill Clinton, now sits on the Jan. 6 probe. She is of the opinion that a criminal referral isn’t the end all be all to accountability or justice. 

When asked whether the select committee would issue a criminal referral for Trump, Lofgren told the Times, “Maybe we will, maybe we won’t.”

“It doesn’t have a legal impact,” Lofgren said. 

Other panel members like Rep. Elaine Luria of Virginia have been insistent, however, that it is about the principle of the matter, political ramifications of the criminal referral be damned. 

“This committee, our purpose is legislative and oversight, but if in the course of our investigation we find that criminal activity has occurred, I think it’s our responsibility to refer that to the Department of Justice,” Luria recently told MSNBC. 

This weekend, Cheney told CNN “there’s not really a dispute on the committee” over the referral and emphasized that members are working in a “really collaborative way.” 

The committee, reportedly, has not yet met formally to discuss issuing a referral to the Department of Justice for Trump, however, and there may not be a meeting in the mix any time soon. 

Public hearings are expected this summer, potentially in May and June, and according to committee member and Rep. Pete Aguilar, the probe is not interested in “presupposing” what will be in its final report. 

As of April 6, the Department of Justice has made nearly 800 arrests in its investigation of the attack on the U.S. Capitol.