What would happen if the Jan 6 committee issues a criminal referral for Trump?

Committee members have disagreed whether to formally request charges against ex-president

Speculation continues to swirl regarding whether Donald Trump would face criminal charges resulting from the Jan 6 attack after it became clear that the select committee was laying out a case to prove his various wrongdoings.

Attention has turned in recent weeks to the committee’s chair and vice chair, who have appeared to take the opposite positions from a majority of their respective parties regarding whether the committee itself would formally call for Donald Trump’s prosecution.

"No, you know, we're going to tell the facts. 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," Democratic committee chairman Bennie Thompson told reporters when asked over the weekend if lawmakers would issue a formal referral.

A day later, Republican vice chair Liz Cheney responded on Twitter: “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.”

Their minor disagreement aside, it seems clear that the next few days and weeks will end in a new torrent of evidence being made public that will suggest, if not outright prove, that Donald Trump lured thousands of would-be rioters to the capital on false charges that almost everyone around him found illegitimate and encouraged them to violence before abdicating his own duties to manage the law enforcement response.

The committee is already aiding the Justice Department in at least some regard: In late July, it provided a number of transcripts of witness interviews to prosecutors who recently saw the chief of staff to former Vice President Mike Pence testify before a grand jury.

That raises the obvious questions: Will the committee’s lawmakers submit criminal referrals for crimes besides the contempt charges the panel’s lawmakers have generated against some of Trump’s closest allies? And if they do, what happens next?

The answer to the latter question is complicated, and for that reason many analysts have avoided making predictions about whether Donald Trump will actually end up on the wrong end of an indictment as a result of the committee’s efforts. Congress’s power when it comes to criminal referrals is a matter for debate in and of itself.

If the committee were to proceed, a referral from its members would go through a much shorter process than the panel’s previous moves to hold potential witnesses who refuse to cooperate with their subpoenas accountable. Those criminal contempt referrals went through a vote on the House floor, where all 435 voting members had a chance to weigh in. The referral is then potentially sent to the Justice Department, though there’s some disagreement between lawmakers and the agency itself regarding whether the DOJ is actually required by law to indict a person referred for contempt.

But a contempt referral process is specifically spelled out in the House’s chamber rules, an elevated status that does not exist for referrals of other criminal acts. The House, in general, does not have law enforcement authority and as such rarely makes actual criminal referrals to the Justice Department, which in itself maintains a very proud history of independence from influence stemming from either Congress or the White House.

Individual House committees have the freedom to send letters to the Justice Department at any time requesting the agency; Republicans have used this move as recently as 2016, when two committees asked the agency to launch an investigation into Hillary Clinton for perjury after they accused her of lying during the Benghazi hearings.

These referrals do not even require a committee vote to be sent; groups of members or even individuals can send these requests, which basically hold no more weight than requests from private citizens. The main goal of these referrals is to build political pressure against the DOJ to take action, an effort with questionable rates of success. The Justice Department remains free to make a decision regarding whether it will seek criminal indictments against individuals whether a referral is sent or not.

Don’t forget: The Justice Department is also already very much pursuing its own investigation into January 6. Hundreds of Americans have been charged in their participation in the attack itself, and Attorney General Merrick Garland has made clear that his agency plans to hold anyone found to be remotely responsible for the attack accountable.

“We will follow the facts wherever they lead,” the attorney general warned in January. “The actions we have taken thus far will not be our last.”

It remains unlikely that the famously tight-lipped DOJ will give any hints into its plans to potentially launch its own formal criminal investigation into Donald Trump before such a move happens. What the committee can do, however, is attempt to win over the Justice Department’s love for impartiality by continuing to highlight testimony and evidence submitted by Republican officials while maintaining the collegial working relationship between Democrats on the panel and its two lone GOP members.

The DOJ has already reportedly asked for at least some of the evidence gathered by the panel, according to The New York Times.That suggests one thing: that the agency, like many Americans, is quietly listening to the committee’s case and weighing its options while the former president plots a return to political power.