After nearly a year of presenting a relatively united front to the world, divisions among lawmakers on the House committee investigating the Jan. 6, 2021, Capitol riot are coming into view.
Chairman Bennie G. Thompson (D-Miss.) told reporters Monday evening — capping a day of headlines about Trump ignoring advisers who had informed him that claims of election fraud were unfounded — that the committee would not be making a formal criminal referral to the Justice Department of the former president, or anyone else.
“That’s not our job,” he said. “Our job is to look at the facts and the circumstances around January 6th, what caused it, and make recommendations after that.”
But within minutes, his declaration had prompted a flurry of responses that left no doubt Thompson’s panel is far from unanimous on the question.
“The January 6th Select Committee has not issued a conclusion regarding potential criminal referrals. We will announce a decision on that at an appropriate time,” tweeted Thompson’s vice chairwoman, Rep. Liz Cheney (R-Wyo.).
Rep. Elaine Luria (D-Va.) went further, tweeting, “If criminal activity occurred, it is our responsibility to report that activity to the DOJ.”
Rep. Adam B. Schiff (D-Calif.) also weighed in, saying in an interview on CNN that the committee had yet to have a discussion on the issue. He thought, he said, that any decision would have to wait until the investigation had concluded.
The mixed messages are in stark contrast to the polished and highly choreographed way in which the committee has carried out its two public hearings. In each, members have stuck to a carefully crafted script, with none of the sparring or crosstalk that is typical of congressional inquiries.
The clashing public statements presage the dilemma that lawmakers will face at the end of the investigation: Do they issue a criminal referral that spells out their findings in the clearest terms possible, but that runs the risk of adding political pressure to the Justice Department’s work? Or do they let their findings speak for themselves?
Legally, there is little substantive difference. A congressional referral would carry no weight in court and leaves the decision on whether to charge Trump or others where it stands today: with prosecutors.
Traditionally, lawmakers or committees make criminal referrals when they think a crime may have been committed — a fairly low threshold that rarely results in criminal charges. The Justice Department ends up pursuing only a small fraction of the referrals it gets from lawmakers.
Nor is the disagreement an indication of how panel members view the criminality of Trump’s actions.
But the decision still matters as a symbolic act.
A criminal referral from the Jan. 6 committee is likely to garner big headlines and turn up the public pressure — particularly from Democrats in a congressional election year — on Attorney General Merrick Garland’s department to aggressively pursue charges.
This year, the committee argued in a legal filing over whether it should be able to access emails from John Eastman, Trump’s attorney, that the former president broke multiple laws. In response, U.S. District Judge David O. Carter issued an opinion that argued that the former president “more likely than not” committed crimes to stay in power.
“So, in some sense, we’ve already done it,” said Rep. Jamie B. Raskin (D-Md.), referring in an interview to the court filing as being vaguely representative of a criminal referral. “But the question is whether there might be some more emphatic way of going to the Department of Justice with it, or is there some more specific way of bringing the attention to the Department of Justice, or is that unnecessary at this point?”
Rep. Zoe Lofgren (D-Calif.), who has previously suggested that a criminal referral from the committee would be unproductive since it carries no legal weight, said in an interview in March that she was certain the Justice Department had read Carter’s opinion.
Rep. Stephanie Murphy (D-Fla.) has cast doubt on the wisdom of a referral, saying in an interview on MSNBC that she was unqualified to decide whether Trump committed a crime.
“I’m not a lawyer and the purpose of our committee is legislative, not criminal prosecution,” said Murphy. “I will leave that to the Department of Justice and their able staff to build the case or investigate if that is necessary. What I am trying to do is to make the case to the American people that our democracy is fragile.”
The committee’s very existence adds to the public pressure on the Justice Department to aggressively pursue all those responsible for the attack on the Capitol.
Garland has repeatedly pledged to follow the evidence wherever it leads, regardless of politics, and has said that he and his Jan. 6 prosecutors are closely watching the committee hearings. Yet there is a tension between the political and legislative act of holding public hearings about the attack, and the criminal investigation and prosecution of anyone who conspired to stop the peaceful transfer of power in a democracy.
At times, members of the committee have publicly challenged the Justice Department to do more, but they also concede that they are not prosecutors. And privately, Justice Department officials acknowledge that if the committee’s work is viewed as intermingling with the Justice Department’s, that could spell problems down the road in court.
Over the months of the two very different investigations, Justice has been reluctant to tell the committee much about the criminal investigation, according to people familiar with the discussions.
Experts said the committee’s decision ultimately may not matter much.
“Prosecutors are going to make their own independent decision based on the evidence so the value of a formal criminal referral is simply that it acts as a device for the committee to focus in on the elements of possible crimes and what elements they may have,” said Norm Eisen, a Brookings Institution senior fellow who was special counsel for Trump’s impeachment. “It also serves some utility in serving the public. But I think the choice between the two is a little bit of a false controversy.”
Harry Litman, a former U.S. attorney and deputy assistant attorney general, said a referral could actually damage the push for legal accountability.
“The referral would be largely cosmetic and kind of messy because it poses the risk that if Garland goes ahead and pulls the trigger on a prosecution, it will be portrayed as doing the committee’s bidding,” Litman said.