What to know about the January 6 committee’s criminal referrals

As the year draws to a close, so does the House January 6 committee’s investigation into the efforts to overturn the 2020 presidential election that culminated in the January 6, 2021, attack on the Capitol.

The committee will hold a final hearing on Monday, December 19, when its final report will also be released. The chair of the committee, Rep. Bennie Thompson (D-MS), told reporters that all nine members of the committee will speak at the final hearing, though it is expected to be shorter than previous hearings.

The big action item at the hearing is expected to be the issuance of criminal referrals to the Justice Department for criminal conduct, based on what the committee has found during its investigation. It will be the committee, in effect, passing the baton to the Justice Department to do what it will with its information and its recommendations. In particular, it will be up to Jack Smith, the career prosecutor appointed in November to be special counsel for the federal government’s investigations of Trump. Smith recently issued subpoenas to government officials in all seven states that were targeted by Trump allies in an effort to overturn the election, as his far less public investigation has been moving forward.

The criminal referrals are still a significant capstone to the committee’s work, even if they are simply advisory. Here’s what to know about them.

What will the criminal referrals do?

A criminal referral is really just a recommendation from the committee to the Justice Department that it should prosecute individuals whom the committee believes have committed crimes. It doesn’t mean they will — it’s not binding and has no legal effect. The committee has no authority to punish anyone otherwise.

However, it could have a real effect on public perception. The committee’s hearing will be nationally televised, and it’s not every day a congressional committee recommends that someone face criminal prosecution in the full spotlight of the national media.

The referrals will add public pressure to the DOJ to act, and increase scrutiny of its decisions. The committee has compiled evidence it will say backs up the referrals and that evidence will be public, both in the committee’s report and the depositions the committee took during its investigation. Smith was appointed to carry out the Justice Department’s investigation in a way that is supposed to be insulated from politics. The result is that Smith’s team is almost certain to view the committee’s evidence as more useful than its recommendations.

One of the committee’s chief objectives was to complete the historical accounting for what happened that day, and these referrals will now be attached to that. As one person close to the committee told Vox, “The committee wouldn’t be doing its job if they did not refer people who they believe have violated the law for criminal prosecution.”

Who will the committee refer for prosecution?

First and foremost is former President Donald Trump. The committee has spent months outlining how the former president broke the law in his efforts to overturn the election. It even made this argument in a California court case earlier this year, where a federal judge agreed with the committee’s lawyers. Then, federal district court Judge David Carter ruled that documents the committee subpoenaed from John Eastman, an outside Trump lawyer, were not protected by attorney-client privilege because Eastman and Trump were acting as criminal co-conspirators. Carter wrote that it was “more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021” and “more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.”

Politico reported Friday that the committee is expected to recommend that the Department of Justice charge Trump with at least three crimes: insurrection, obstruction of an official proceeding, and conspiracy to defraud the United States government.

Eastman, the outside lawyer who pushed for former Vice President Mike Pence to unilaterally overturn the election, also could face a criminal referral for his efforts to push false claims about election fraud and disrupt the process of certifying the 2020 election.

Other potential targets for criminal referrals could include Trump lawyer Rudy Giuliani as well as Jeffrey Clark, the former Justice Department official who was briefly poised to become Trump’s acting attorney general and weaponized the DOJ to attempt to overturn the 2020 election. Clark was concerned enough about criminal exposure that he repeatedly invoked the Fifth Amendment when questioned by the committee.

Thompson has also told reporters that there will be “five or six” categories of referrals, which means those involved in the effort to overturn the election could face referral for bar discipline if they are lawyers, or to the House Ethics Committee if they are members of Congress.

What happens next?

All of the information collected by the committee, as chronicled in its report and in the multitude of depositions, will be made publicly available and thus accessible to the Department of Justice’s investigation. The committee and the DOJ have been working along parallel lines, and it’s likely that at least some information collected by the committee will buttress the DOJ’s ongoing efforts.

Then there’s the 2024 impact. Republicans have long written off the January 6 committee as a partisan exercise, but criminal referrals could have an impact if a congressional committee explicitly says Donald Trump committed crimes in his effort to overturn the 2020 election. While Republican primary voters are unlikely to reject the former president explicitly over his conduct, it’s likely to increase the growing level of fatigue that many Republican primary voters have with Trump, who has spent recent weeks dining with antisemites and flogging NFTs.

The committee itself served to keep the efforts to overturn the election in the news throughout the summer and into the fall, contributing to a midterm election where swing voters shied away from those Republicans most associated with election denial and Trump’s efforts to overturn the 2020 election. With Trump now an active candidate for 2024, a criminal referral would loom over any discussion of his campaign or action taken by the former president moving forward.

In the meantime, the committee dissolves at the end of Congress’s current session, and a number of its members won’t be returning to Congress. Reps. Elaine Luria (D-VA) and Liz Cheney (R-WY) lost their bids for reelection while Reps. Adam Kinzinger (R-IL) and Stephanie Murphy (D-FL) decided against even running.

However, others will still have high-profile perches in the next Congress, with Rep. Pete Aguilar (D-CA) as the number three House Democrat and Reps. Jamie Raskin (D-MD) and Adam Schiff (D-CA) both poised to remain highly visible even as Republicans take the majority in the House.

But that doesn’t mean they won’t still be talking about January 6. Only hours after the hearing gavels to a close, Cheney will be speaking at an event in Arkansas.

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