The select committee could send a “criminal referral” to Attorney General Merrick Garland outlining its recommendations, lawmakers note, but it would have no substantive value.
“A referral doesn’t mean anything,” said Rep. Zoe Lofgren (D-Calif.), a member of the select committee. “It has no legal weight whatsoever, and I’m pretty sure the Department of Justice has read [last week’s] opinion, so they don’t need us to tell them that it exists.”
Lawmakers and congressional committees have long issued criminal referrals that the Justice Department rarely acts on. A referral against a former president would be unprecedented, bound to set Washington ablaze with speculation and force tough questions for the Biden administration. Jan. 6 committee Chair Bennie Thompson (D-Miss.) has floated such a move, but he reiterated this week that investigators haven’t made a decision yet.
“Our job is … to look at the facts and circumstances around what occurred. The judge’s ruling certainly indicates that, in his opinion, the president had something to do with what occurred,” Thompson said in a brief interview. “So we’ll make a decision at some point as a committee.”
Judge David Carter jolted the panel in his 44-page ruling on Monday, when he declared Trump’s effort to overturn the election a “coup in search of a legal theory.”
Citing that opinion, other members of the panel echoed Lofgren’s assessment. While a criminal referral of Trump would be an exclamation point at the end of their inquiry, the ruling — as well as signs that the Justice Department is expanding its Jan. 6 investigation into Trump’s orbit — could make the extra step unnecessary.
“Whether we make a referral or not, I think that as the judge pointed out, there is credible evidence that the former President is engaged in criminal conduct,” said Rep. Adam Schiff (D-Calif.), another member of the panel. “And I don’t think that can be ignored by the Justice Department.”
Rep. Jamie Raskin (D-Md.), a member of the select committee and constitutional law expert, emphasized that anyone can make a criminal referral, including a single lawmaker or a member of the public. It’s more important for the committee to ultimately release the evidence it has gathered, he said, calling it “critical” that “all the information comes out.”
Congress has no power to initiate a prosecution; that decision rests entirely with the Justice Department. There’s no formal process for making such a referral; the select committee could choose to vote on one and directly send it to DOJ without a vote in the full House. But referrals have long appeared to have little bearing on DOJ’s charging decisions — the department rarely takes them up and other times has charged witnesses for lying to Congress despite no referral from the legislative body.
That was the case when the Justice Department charged Roger Stone in early 2019 with misleading the House Intelligence Committee during testimony about his efforts to contact WikiLeaks. Meanwhile, a subsequent criminal referral by Schiff, who leads the House Intelligence Committee, of Erik Prince, another witness in that probe, never led to criminal charges.
Additionally, some legal experts worry that Congress issuing a criminal referral of Trump could jeopardize any meritorious DOJ investigation by infusing it with the perception of politics.
“A formal criminal referral from Congress in this situation could backfire. The Justice Department’s charging decisions should not be influenced by political pressure, and that’s how this might look,” said Ronald Weich, a University of Baltimore law professor and former assistant attorney general in the Obama Justice Department. “A referral could make it harder for the Department to prosecute.”
“It would have no legal effect, just political ones,” echoed Randall Eliason, a George Washington University criminal law professor. “And Congress wouldn’t be telling the DOJ anything it doesn’t already know, or that it couldn’t tell the DOJ without a referral. So I still feel like the costs outweigh any benefits.”
Garland emphasized Friday that he’s already aware of Carter’s ruling on Trump, telling reporters at a press conference that he had seen news coverage of the decision. He said that external factors would not influence DOJ’s prosecution decisions in relation to the Jan. 6 probe.
“The only pressure I feel and the only pressure that our line prosecutors feel is to do the right thing,” he said.
There’s one exception to the Justice Department’s pattern of mostly disregarding criminal referrals from lawmakers: The department pays attention when it involves contempt of Congress.
When congressional committees believe witnesses have illegally defied their subpoenas for documents and testimony — a crime specifically aimed at Congress — the House or Senate may refer them for prosecution. A contempt referral requires the U.S. Attorney for Washington, D.C., to consider the matter for potential charges, and they’ve agreed to bring them in some cases.
That was the case in November, when the Justice Department charged Trump adviser Steve Bannon with two counts of criminal contempt for defying a Jan. 6 select committee subpoena. DOJ quickly moved to charge Bannon, indicting him just three weeks after the House referred him for contempt charges. Bannon is slated to go on trial in July.
But the Justice Department has moved more slowly on a referral by the committee to prosecute former White House chief of staff Mark Meadows. The full House ratified the referral in December, but DOJ has not signaled it will bring charges. That led members of the panel to air public frustrations with DOJ at a Monday meeting, when lawmakers voted to hold two more Trump aides — Daniel Scavino and Peter Navarro — in criminal contempt of Congress.
The House is expected to send those referrals to the Justice Department next week.
Josh Gerstein contributed to this report.