All eyes are on the Department of Justice after the House Jan. 6 committee made criminal referrals related to former President Donald Trump‘s efforts to subvert the 2020 election, recommendations that were seen by legal experts as a symbolic but powerful message to federal prosecutors.
In likely its final public convening, the nine-member committee recommended the DOJ should charge Trump with violations of 18 U.S.C. 1512(c), obstruction of an official proceeding of Congress; 18 U.S.C. 371, conspiracy to make false statements and defraud the United States government; and 18 U.S.C. 2383, to “incite,” “assist,” or “aid and comfort” an insurrection. Each lawmaker on the nine-member committee voted “aye” in favor of the referrals.
“We trust the Department of Justice will be able to form a far more complete picture through its own investigation,” Rep. Jamie Raskin (D-MD) said Monday.
JAN. 6 COMMITTEE CAPS OFF 18-MONTH INVESTIGATION WITH FINAL PUBLIC MEETING
Chuck Rosenberg, a former U.S. attorney for the Eastern District of Virginia, said the referrals from the perspective of Congress are “important,” adding that it’s “symbolic and it’s momentous” during an interview with MSNBC on Monday.
“If you’re talking about it from the perspective of the Department of Justice, it is somewhere between meaningless and completely meaningless,” Rosenberg contended.
Ahead of the announced referrals to DOJ, several legal experts echoed Rosenberg’s analysis, underscoring the importance of the thousands of witness interviews gathered over an 18-month period to conclude their findings but raising caution about the perceived partisan nature of the panel.
The committee, made up of seven Democrats and two Republicans who voted to impeach Trump following the Jan. 6 Capitol riot, was formed by Speaker Nancy Pelosi (D-CA) as she rejected GOP Leader Kevin McCarthy‘s (CA) nominees such as Reps. Jim Banks (R-IN) and Jim Jordan (R-OH) to form a more bipartisan panel.
“If they’re acting on a mostly partisan referral from a mostly partisan committee, and they take the recommendations of the referrals and charge the people that the committee wanted them to charge, then it looks in some quarters like they’re acting at the behest of the committee,” Rosenberg said.
But Vermont Law School professor Jared Carter pushed back on the notion that the referrals are “meaningless,” contending that it’s ultimately up to the DOJ on what it does with the referrals. “I think this puts additional pressure on them to do something,” he told the Washington Examiner.
“It’s not like these are actual charges now … but I think it’s very important from the perspective of how history records this very tumultuous period in the United States. And let it now record that former President Trump has been criminally referred by Congress,” Carter added.
Joy Vance, another former U.S. attorney who spoke to MSNBC, said it was “concerning to see Congress making recommendations” because the DOJ already makes decisions about prosecutions with the utmost confidence.
Vance said the committee’s findings would give the DOJ the confidence to look into its referrals if it “backstops every recommendation it makes with a detailed factual recitation that involves some of the more than 1,200 witnesses that they’ve spoken to so far.”
After the conclusion of the panel’s last public meeting, Chairman Bennie Thompson (D-MS) said he has “no doubt” the DOJ would prosecute Trump if it followed the committee’s investigation.
The panel’s most consequential referral for insurrection carries the potential punishment of up to 10 years in prison and would bar the former president from ever obtaining office again under U.S. law. The recommendation stemmed from U.S. District Judge Amit Mehta’s ruling in February saying Trump’s language plausibly incited violence on Jan. 6, in addition to the Senate’s 57 votes in last year’s impeachment trial to convict Trump on “incitement of insurrection.”
Court actions related to the committee’s investigation also allowed the panel to uncover further information to make their referrals in part against John Eastman, an attorney who headed Trump’s last-ditch bid to remain in power. In March, U.S. District Judge David Carter concluded Trump and Eastman likely conspired to overturn the election, calling it “a coup in search of a legal theory.”
The DOJ is under no obligation to pursue any referral — and in the past, it often has not. For example, the DOJ charged former White House adviser Steve Bannon and former trade and manufacturing head Peter Navarro but declined to pursue contempt of Congress charges against former White House communications director Daniel Scavino and Trump chief of staff Mark Meadows.
However, the DOJ could choose to prosecute Trump based on the nature of the committee’s criminal referrals.
Attorney General Merrick Garland appointed special counsel Jack Smith to oversee the DOJ’s investigations regarding Trump’s conduct during the Jan. 6 riot, as well as his handling of classified documents at his Mar-a-Lago home, where the FBI recovered classified documents that were taken from the White House when he left office.
As part of those investigations, witnesses have been asked questions about meetings Trump held in December 2020 and January 2021 to consider actions aimed at overturning the election, as well as the former president’s pressure campaign on former Vice President Mike Pence to assist with that effort on Jan. 6.
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Ahead of the referrals, Trump spokesman Steven Cheung denounced the committee’s 10 hearings since its formation as “show trials” run by “Never Trump partisans.”
“This kangaroo court has been nothing more than a Hollywood executive’s vanity documentary project that insults Americans’ intelligence and makes a mockery of our democracy,” Cheung added.
The DOJ declined a request for comment from the Washington Examiner.
