The Washington PostDemocracy Dies in Darkness

The inevitable question arrives: Will Trump face criminal charges?

Trump supporters participate in a rally near the White House on Jan. 6, 2021. (John Minchillo/AP)
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It is fair to ask what accountability looks like in the wake of the House select committee’s investigation into the riot at the Capitol on Jan. 6, 2021.

There’s no question about the primary cause of the violence that day: Donald Trump’s months of insistence that fraud was rampant, his weeks of claims about the election being stolen, and his push in the days before Jan. 6 for people to show up in Washington for a “wild” protest. But beyond criminal prosecutions for the rioters themselves, what accountability might apply to those who stoked the mob’s anger and sent them to the Capitol in the first place?

Many critics of Trump, on Capitol Hill and elsewhere, have long believed that he should face criminal prosecution — and not only for the riot. Since the House committee was formed, a question has been sitting in the background: What does this portend for Trump?

In recent days, that question has moved to the forefront.

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On Sunday, committee member Adam B. Schiff (D-Calif.) was asked by Martha Raddatz of ABC News whether he thought Trump should be criminally prosecuted for the riot. Schiff was quick to differentiate between what the committee could do — gather evidence — and the ability of the Justice Department to press charges.

“I would like to see the Justice Department investigate any credible allegation of criminal activity on the part of Donald Trump or anyone else,” Schiff replied, adding that there were “parts of these different lines of effort to overturn the election that I don’t see evidence the Justice Department is investigating.”

To bolster the idea that the department should do more, Schiff pointed to the determination of U.S. District Judge David O. Carter in March that Trump had probably broken the law. But charges mean building a case.

“Once the evidence is accumulated by the Justice Department, it needs to make a decision about whether it can prove to a jury beyond a reasonable doubt the president’s guilt or anyone else’s,” Schiff added. “But they need to be investigated if there’s credible evidence, which I think there is.”

Criminal charges would mean the Justice Department obtaining an indictment against Trump. That would probably (but not necessarily) follow a potential criminal referral from the committee, a nonbinding recommendation that the department pursue such an action.

Speaking to reporters after Monday’s hearing, committee Chairman Bennie G. Thompson (D-Miss.) shied away from rushing down that path.

“We’re going to tell the facts,” Thompson said. “If the Department of Justice looks at it, and assume that there’s something that needs further review, I’m sure they’ll do it.” Asked whether the committee might make a criminal referral, he said, “No, that’s not our job.”

In short order, other members of the committee clarified that it might be. Committee Vice Chairwoman Liz Cheney (R-Wyo.) wrote on Twitter that the committee “has not issued a conclusion regarding potential criminal referrals. We will announce a decision on that at an appropriate time.” Rep. Elaine Luria (D-Va.) offered a similar thought, as did the committee itself in a statement.

“Right now, the committee is focused on presenting our findings to the American people in our hearings and in our report,” it read in part. “Our investigation is ongoing and we will continue to gather all relevant information as we present facts, offer recommendations and, if warranted, make criminal referrals.”

Fine. So the committee might make such a referral. But that doesn’t mean that the Justice Department has to wait for it — or that the department has to do anything with it

In a commencement address at Harvard University last month, Attorney General Merrick Garland hinted at this question.

“We are undertaking one of the largest investigations in our history to hold accountable everyone who was criminally responsible for the January 6 assault on our democracy,” he said. “We will follow the facts wherever they lead.”

“Together,” he said later, “we must ensure that the magnitude of an event like January 6th is not downplayed or understated. The commitment to the peaceful transfer of power must be respected by every American.” It is safe to assume that the words “every American” were carefully chosen.

To Schiff’s point, we should consider another quote from Garland. He told reporters this week that he would watch the hearings, though perhaps not in real time. What’s more, he said: “I can assure you that the January 6 prosecutors are watching all of the hearings as well.” In other words, the Justice Department is paying attention to the evidence that the committee has gathered even without a referral.

Of course, there’s a big gap between a House committee arguing that Trump broke the law or even presenting evidence to that effect and Garland then charging a former president with conspiracy or obstruction (as the committee members seem to be arguing for). There’s a big gap between a judge determining that Trump probably broke the law — affecting whether communications between him and his lawyer can be withheld from the committee — and a grand jury making that determination. And there’s a big gap between Garland saying in the abstract that those responsible for Jan. 6 should be held accountable and actually taking the dramatic and politically fraught step of trying to do so.

It’s been more than a year and a half since the riot at the Capitol. So far, the most severe sanction that has resulted was Twitter’s ousting of Trump from its platform. He was impeached, yes, but he’d been impeached before. He left the White House, but that was a function of the election, not of his denial of that election loss. Beyond that, he’s just a rich guy from whom Republicans are seeking approval.

The House select committee seems poised to refer a criminal case to the Justice Department — and that, too, may be as far as it goes. It may simply be the case that no accountability will be implemented as a result of the investigation and that Trump’s critics will once again have to reset their expectations.

The next possible opportunity for accountability would be a fraught one: the Republican 2024 presidential primaries.