The January 6 Committee Will Issue Criminal Referrals to the DOJ—Will Trump Make the List?

On June 30, 2021, the House of Representatives voted to form the Select Committee to Investigate the January 6th Attack on the United States Capitol, a.k.a. the January 6 committee. Come January, when Republicans take over the lower chamber, it will vanish into thin air, as the people who will then hold power have a vested interest in pretending the events that took place that day in 2021 were not a big deal. Before that happens, though, the panel will issue a final report detailing its findings, much of which will presumably make Donald Trump and the people involved in the attack on the Capitol look very bad. Another bit of unfinished business for the committee? The matter of criminal referrals, which are apparently in the offing.

On Tuesday, chairman Bennie Thompson told reporters that the panel has decided to criminally refer individuals to the Department of Justice for prosecution. According to CNN, the decision of whether to do so has long “loomed large over the committee,” with panel members in wide agreement that Trump and his allies committed a crime by “push[ing] a conspiracy to prevent the peaceful transfer of power.” However, they’re in disagreement over what to do about it; while some have reportedly argued that “criminal referrals are not necessary to close out the panel’s investigation” since the Justice Department is conducting its own criminal investigation into the attack, others believe they are “a necessary measure” to complete the panel’s work.

According to Thompson, the committee, which was scheduled to meet today, has not yet decided exactly who to recommend for criminal charges. Among the potential charges reportedly being considered are conspiracy to defraud the US and obstruction of an official congressional proceeding. The panel itself does not have the ability to indict anyone, meaning the referrals will not carry legal weight. Still, as The New York Times notes, a criminal referral would be a hugely “symbolic act by the panel to put forth an official finding that it believes a crime or crimes were committed.” Representatives Liz Cheney, Jamie Raskin, Zoe Lofgren, and Adam Schiff, all of whom are lawyers, make up a subcommittee of the panel that has studied the matter.

Obviously, the question on many people’s minds is whether Trump himself will be referred for charges. In a court filing in March, the committee’s lawyers said that they had amassed evidence showing that Trump and others could potentially be charged with conspiracy to commit fraud and obstruction through their efforts to mislead the public about the outcome of the 2020 election and their attempt to overturn the result.

Of course, even if the panel does not refer Trump for criminal charges, he’d hardly be in the clear, given the Justice Department’s current investigation into his actions surrounding the election. Last month, following Trump’s announcement to run for office for a third time, Attorney General Merrick Garland appointed a special counsel, Jack Smith, to oversee the case. (Smith is also overseeing the investigation into Trump‘s decision to take classified documents with him to Mar-a-Lago and refuse to give them back, despite being asked to do so on multiple occasions.) On Tuesday, Smith issued grand-jury subpoenas to officials in Arizona, Michigan, and Wisconsin, seeking all their communication with Trump, his 2020 campaign, and a number of allies and aides. (The three states played a key role in Trump’s plot to stay in power after he lost the election to Joe Biden.)