The prospect of criminal referrals as floated by members of the committee can therefore be seen more as a political message aimed at Trump and Attorney General Merrick Garland rather than suggesting the investigation will ultimately lead to criminal charges, sources said.
“The Select Committee is gathering facts and asking questions about the violence of January 6th and its causes so we can make legislative recommendations and help ensure nothing like that day happens again,” a committee aide told CNN. “The Select Committee is not conducting a law enforcement investigation, so if we uncover information that we believe could be related to criminal conduct, we will make whatever referrals are appropriate.”
But any referrals made by the committee may serve as more of a political statement than anything else.
“DOJ knows exactly what happened on January 6. There’s no indication they’re unaware or need a referral from Congress to make them aware of these issues,” said Randall Eliason, a George Washington University law professor and former public corruption prosecutor.
The special committee attempting to pressure Garland’s Justice Department to prosecute also could backfire, Eliason said, by playing into the criticism that Democrats are trying to prosecute Trump. That could make bringing a case, if enough evidence was found, thornier for the Biden administration politically as Garland strives to restore the Justice Department’s reputation of working separate from politics.
Recent comments by committee members underscore the delicate balancing act between forging ahead with the investigation within the bounds of its core mandate and addressing public pressure to show the panel is making substantive progress toward its ultimate goal of piecing together a complete picture of what contributed to the events of January 6, including Trump’s role.
“I don’t want to go there yet to say, ‘Do I believe he has (committed a crime),’ I think that’s obviously a pretty big thing to say. We want to know though, and I think will by the end of our investigation, and by the time our report is out, have a pretty good idea,” Rep. Adam Kinzinger, one of two Republican members of the committee, told CNN’s Jake Tapper on “State of the Union.” “We’ll be able to have out on the public record anything Justice Department needs maybe in in pursuit of that.”
There has been a steady drumbeat of similar comments made by members of the committee since Vice Chair Rep. Liz Cheney first suggested this month that Trump may have committed a crime by seeking to obstruct a congressional proceeding, calling it a “fundamental question.”
“Mr. Meadows’ testimony will bear on another fundamental question before this Committee, and that is whether Donald J. Trump, through action or inaction, corruptly sought to obstruct or impede Congress’s official proceeding to count electoral votes,” she said while making the case that former White House chief of staff Mark Meadows should be held in contempt of Congress for refusing to cooperate.
Rep. Elaine Luria, a Democrat on the committee, has since told CNN that criminal referrals are not off the table, including for Trump, if the evidence supports such a move.
“I think the evidence will speak for itself and if we determine that criminal actions were taken, or criminal acts were taken because of inaction … that will be forwarded from the committee and (in) the appropriate manner to the Department of Justice,” Luria told CNN’s Dana Bash.
“But that’s exactly why we’re conducting this investigation to find out all the facts, to determine what we can do in the future to prevent something like this from happening and … hold people accountable who are responsible,” Luria added.
Meadows, for his part, is already challenging the committee’s approach. In a lawsuit, he is attempting to block subpoenas for his phone records and testimony, saying the committee isn’t pursuing the information for a sound, legislative reason.
“Law enforcement and the punishment of perceived legal wrongs are not valid legislative purposes. To the extent Congress seeks to utilize subpoenas to investigate and punish perceived criminal wrongdoing, it unconstitutionally intrudes on the prerogatives of the Executive Branch,” his attorneys wrote. “Bringing information to light for the sake of bringing it to light is not a valid legislative end.”
Focus on Trump and inner circle
The line of questioning from investigators during recent witness interviews and depositions make clear the committee is increasingly focused on Trump’s actions leading up to January 6 and his inaction as rioters stormed the Capitol that day, according to two sources familiar with such discussions.
“The committee seems to be shifting its focus much more to Trump and those in his inner circle,” one of the sources familiar with questions asked during a recent witness interview told CNN, noting that included the former President’s actions, or lack thereof, during and immediately after the riot.
The committee has clearly signaled it is seeking to establish a narrative centered around Trump’s “dereliction of duty” on January 6 — a specific phrase also used by Cheney during the panel’s meeting to hold Meadows in contempt of Congress.
Still, some members of the committee have criticized Garland and the DOJ over the fact they do not appear to be investigating Trump for his efforts to overturn the election results in key swing states.
Among them is Rep. Adam Schiff, who told CNN last month that Trump should already be facing a criminal referral for pressuring the Georgia secretary of state to find enough votes to upend the President Joe Biden’s victory there during a now infamous recorded phone call in early January.
“If you or I were on that call and recorded we’d be under investigation I not indicted by now for a criminal referral to defraud the people of Georgia and the people of the country,” Schiff said when asked if Garland is letting Trump off the hook.
While the House committee is moving quickly, given the political reality that the investigation likely won’t continue to exist if Republicans take over the House in the midterm elections, the Justice Department prosecutors are taking a more methodical approach. And historically, many of the criminal referrals congressional committees or members of Congress make to the Justice Department never result in prosecutions.
The recent criminal contempt of Congress referral of Steve Bannon is a narrow exception, because the criminal case is based upon his responses to Congress and their contempt vote. The House has also referred Meadows for criminal contempt, but he has not been charged.
Justice officials say that while they are aware of the political pressure to be more aggressive, prosecutors can only follow the evidence they have and that investigations take time. The department has five years of statute of limitations in which to bring possible criminal charges.