The House Jan. 6 committee may have outlined a potential criminal case against Donald Trump, but it doesn't actually bring the former president any closer to prosecution.
The Justice Department already has been conducting its own wide-ranging investigation into the Jan. 6, 2021 insurrection at the U.S. Capitol and the efforts by Trump and his allies to undo the results of the 2020 presidential election.
The special counsel overseeing that inquiry has given no indication of what charges he might bring, but he's under no obligation to take the committee's criminal referral into account or to follow the prosecution roadmap laid out by the panel.
“This is historic, that a Congressional committee has recommended criminal charges against a former president, but it does not change the fundamental fact that the Justice Department gets to decide who should be charged with crimes,” said Ronald Weich, the dean of the University of Baltimore School of Law and the department's former assistant attorney general for legislative affairs.
“The Justice Department,” he added, “should not be influenced by another branch of government.”
The panel referred Trump for possible prosecution for four separate criminal offenses, related both to the riot itself and his efforts to cling to power. Those include allegations he aided the insurrection, conspired to defraud the United States by trying to prevent the transfer of power, conspired to make a false statement through an alleged scheme involving so-called “fake electors” and obstructed an official proceeding — the counting by Congress of electoral votes.
At least some of those potential charges cover general areas the Justice Department is known to already be investigating.
Prosecutors in June, for instance, issued a flurry of subpoenas to Republicans who served as “fake electors” in battleground states won by Trump. Trump and allies pressured authorities in those states to replace Biden’s electors with ones for him on specious or nonexistent allegations that his victory was stolen.
Easily the most consequential statute invoked by the committee is one that makes it a crime to either incite or aid an insurrection or rebellion against the government. The statute bars anyone convicted of it from holding future office.
It's unclear how seriously the Justice Department might consider such a statute, which has not been used in any of the more than 900 federal prosecutions of the Capitol rioters themselves.
In the executive summary of the report, the committee says Trump was directly responsible for summoning to Washington supporters who later stormed the Capitol, and notes how a federal judge earlier this year — in refusing to dismiss lawsuits against Trump by Democratic lawmakers — held that Trump's speech to a crowd of loyalists that day “plausibly” led to the riot.
But the committee's suggestion that Trump could be held accountable for his inaction during the riot, including by not dispatching the military to the Capitol or by waiting hours to tell the crowd to disperse, may make sense on a “gut level” but is a theory the Justice Department is likely to be wary of, said Rory Little, a professor at UC Hastings Law in San Francisco.
“The danger of that idea, that standing by and watching an insurrection happen, when you might be able to do something about it, that’s a pretty dangerous precedent to set,” he said. “American criminal law doesn’t generally punish people who just stand by and watch.”
Still, the criminal referrals will almost certainly accelerate demands for action by Attorney General Merrick Garland from Democrats and members of the public who regard the referral, and the accompanying evidence being transmitted to the Justice Department, as a template for prosecution.
And the committee — whose chief investigative counsel is a former U.S. attorney — also has earned broad credibility for its information-packed public hearings and for a sprawling investigation that included interviews with more than 1,000 people.
There have also been instances in which judges have agreed that there is basis to suspect Trump of wrongdoing.
In March, a federal judge in California, in authorizing the release to the House committee of more than 100 emails from conservative lawyer and Trump adviser John Eastman, asserted that it was “more likely than not” that Trump had committed crimes in his attempt to stop the certification of the election. The judge, David Carter, cited in his ruling two of the same statutes — conspiring to defraud the U.S. and obstructing an official proceeding — as the committee did in its report Monday.
The committee has already made multiple referrals for contempt of Congress that the Justice Department has taken up. Longtime Trump ally Steve Bannon was convicted in July of defying a congressional subpoena, and former adviser Peter Navarro is awaiting trial on similar allegations.
But there’s a distinction between the Trump referrals on Monday and those involving Bannon and Navarro, Weich said. Under the contempt of Congress law, Congress is itself the victim and the Justice Department is obligated to present the case to a grand jury, he said.
That’s different from the Trump referral, where Congress is reporting a broader crime, one they’ve framed as an attack on democracy.
And more broadly, the burden of proof faced by the committee -- which did not need to cross-examine witnesses or test evidence before a jury -- is vastly different from what the Justice Department would have to establish in court.
“It’s a completely different judgment,” said Randall Eliason, a former federal prosecutor in Washington who teaches law at George Washington University.
“Congress is making a political judgment. They’re not prosecutors, it’s not their role to make those decisions, and they’re not trying to prove these allegations beyond a reasonable doubt to a jury.”
