The debate dividing the January 6 committee

Former President Donald Trump prepares to speak at a rally in Florence, Arizona, on January 15. The January 6 committee is split over whether to refer Trump to the Justice Department for criminal prosecution. | Mario Tama/Getty Images

Should they refer Trump to the DOJ for prosecution? Or could that somehow backfire?

How will the House committee investigating the January 6 attack address whether Donald Trump committed crimes in his attempt to overturn the 2020 election?

According to recent reports, there have been some divisions in the committee about this. Politico’s Nicholas Wu and Kyle Cheney wrote last week that some of its members “are increasingly skeptical” about whether they should refer Trump to the Justice Department for criminal prosecution. The New York Times’s Michael Schmidt and Luke Broadwater had a similar story Sunday.

The committee can’t actually file charges against anyone, but they can recommend that the Justice Department do so, with a criminal referral. The House has already approved four such referrals from the committee — of Steve Bannon, Mark Meadows, Dan Scavino, and Peter Navarro — for contempt of Congress. (All four aides refused to turn over some or all records to the committee.)

Panel leaders have been open that they’re assessing whether Trump violated the law, too, and they’ve argued he may have done so in court. Many anticipated that the committee would eventually put forward a referral for the former president.

But committee members like Rep. Zoe Lofgren (D-CA) downplayed the importance of such a move in these recent stories. “A referral doesn’t mean anything,” Lofgren told Politico.

In practical terms, Lofgren has a point. Once receiving a referral recommending charges against someone, the DOJ is under no obligation to follow through and charge them, and often the agency doesn’t.

Yet the question of whether Trump should be referred for prosecution does touch on broader questions of what exactly the committee is trying to achieve, and how Democrats (and Trump’s few Republican critics) are struggling to ensure the former president faces consequences for his attempted election theft.

Should the committee’s top priority be to make a maximal political splash, discrediting Trump in the eyes of the public? Or should they focus on trying to help a criminal indictment against Trump actually happen, and to make that case as strong as possible?

Is their audience the public, or is it Attorney General Merrick Garland?

And which strategy will best achieve those aims — if achieving them is even possible?

What is the January 6 committee trying to do?

In one sense, the committee is engaged in a fact-gathering project, trying to document what happened during Trump’s attempt to overturn the election and during the attack on the Capitol. But the committee members have also made clear they view Trump’s behavior as a threat to the functioning of US democracy.

So they are likely trying to help ensure that doesn’t happen again and to weaken Trump’s chances for a 2024 comeback. They could do that in two ways.

The first would be to make their case against Trump in the court of public opinion. If their report contains damning findings about Trump, then perhaps some swing voters might be persuaded not to restore him to office. If this is the main goal, the committee’s report actions and eventual report should be aimed at the public.

The second would be to make a criminal indictment of Trump, and perhaps his conviction, more likely. Again, this would in part be about turning up actual damning findings, but the key audience here wouldn’t be the public — it would be top Justice Department officials like Attorney General Merrick Garland.

Carolyn Kaster/Pool/Getty Images

US Attorney General Merrick Garland speaks at the Department of Justice in Washington, DC, on January 5, addressing the January 6, 2021, attack on the US Capitol.

Trump’s critics believe he committed crimes and want him charged — he tried to steal the election, after all! But it’s unclear how likely that is to happen. A recent New York Times report claims federal prosecutors have recently started “seeking information about people more closely tied to Mr. Trump.” These deliberations, though, are happening behind closed doors, and we don’t really know their status.

Some Trump critics fear that Garland isn’t taking this matter seriously enough, and hope to publicly pressure him into doing so (or simply to lay out a strong, reasoned case that Trump should be charged). But others believe that, if a case against Trump really is in the works already, the committee should avoid getting in the way of the DOJ’s work, avoiding any actions that could make such a prosecution look politicized.

It’s unclear whether the January 6 committee’s behavior will have any significant impact at all on public opinion about Trump (which has proven difficult to impact) or Garland’s decision-making (which he will try to keep removed from politics). But they might as well try.

To refer or not to refer

The committee could conceivably approach the question of Trump’s criminal liability in a few ways, from weakest to strongest:

• They could lay out evidence he may have committed crimes but decline to affirmatively state a conclusion on whether he did (this is what special counsel Robert Mueller eventually did in his report on Trump — he decided his team “would not reach a determination, one way or the other, about whether the president committed a crime”).
• They could write that in their view Trump acted criminally, but avoid an explicit referral to the Justice Department.
• Or they could write that referral and have it voted on by the full House of Representatives.

Again, a referral is just a recommendation, the Justice Department is under no obligation to follow it, and it might have little practical impact. But for those of the school of thought that Garland needs more public pressure to take a Trump case seriously, this could help achieve that.

Until recently, the question of what to say about Trump seemed to lie months far in the future, once the committee wrapped up its work, but a twist in the process surfaced it sooner.

While attempting to get Trump’s lawyer John Eastman to turn over records, despite Eastman’s claims to attorney-client privilege, the committee argued in a court filing that his records fell under the “crime-fraud exception.” If an attorney is advising a client on how to commit crimes (rather than just how to defend against them), those communications aren’t privileged.

To make this argument, the committee had to put forward their best argument that Trump may have committed crimes. So they did. They argued that their “evidence and information” establish “a good-faith belief” that Trump and others may have engaged in “criminal and/or fraudulent acts.”

They mentioned three in particular. First was obstruction of an official proceeding (trying to disrupt Congress’s count of the electoral votes on January 6 with actions like pressuring Mike Pence). Second was conspiracy (basically, working with other people to obstruct the proceeding). Third was simple common law fraud (the lies he spread that the election was stolen from him).

Drew Angerer/Getty Images

The House Select Committee to Investigate the January 6th Attack on the US Capitol met on March 28 to consider a vote to recommend contempt of Congress charges for Dan Scavino and Peter Navarro for refusing to cooperate with subpoenas from the committee as part of their investigation into the January 6, 2021, insurrection.

The committee did not argue here that Trump affirmatively committed crimes, they just said they have “a good-faith belief” that he “may” have done so. This also wasn’t their whole case, it was a 14-page overview and limited to matters Eastman was involved in.

But it was enough to convince the judge who reviewed their claims, David Carter of the Central District of California. In a scorching order, Carter wrote in late March that it was “more likely than not” that Trump committed obstruction and conspiracy related to the January 6 vote count. “If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself,” Carter added, in a passage that may well have been aimed at the attorney general.

Did the referral of Trump kind of already happen?

Judge Carter’s ruling was a victory for the committee, but it had a surprising effect on some of its members and staff. It persuaded some that a criminal referral letter was now unnecessary and perhaps counterproductive because Judge Carter had kind of already done it. Schmidt and Broadwater of the Times wrote:

The ruling led some committee and staff members to argue that even though they felt they had amassed enough evidence to justify calling for a prosecution, the judge’s decision would carry far greater weight with Mr. Garland than any referral letter they could write, according to people with knowledge of the conversations.

The members and aides who were reluctant to support a referral contended that making one would create the appearance that Mr. Garland was investigating Mr. Trump at the behest of a Democratic Congress and that if the committee could avoid that perception it should, the people said.

So among these committee members, there’s a belief that Garland now is or will be investigating Trump and that they should stay out of his way. They believe they can still write in their own report that they think Trump committed crimes, but they want to avoid sending that referral letter to the Justice Department. Doing so, they fear, could backfire.

But remember that other priority of the committee: trying to impact public opinion. Here, a reluctance to refer Trump for prosecution could be problematic. It could be interpreted by the media, much like the Mueller report, as essentially “backing down.” The referral would be symbolic, but symbols can send a message, and declining to refer Trump (after referring four of his ex-aides) might send the wrong message.

There’s also the argument put forward by Rep. Elaine Luria (D-VA) recently — that this isn’t about messaging, but rather duty. “If in the course of our investigation we find that criminal activity has occurred, I think it’s our responsibility to refer that to the Department of Justice,” Luria said.

The disagreement over a criminal referral concerns something the January 6 committee can control, but the fate of the republic likely doesn’t hinge on it. The decision on whether Trump will be prosecuted will be made by the Justice Department. And the decision on whether Trump will win if he runs in 2024 will be made by voters, most of whom are not so happy with Joe Biden lately.

The committee can do its best to marginally impact either decision-maker, but the looming sense that Trump might slip away from consequences yet again — or regain power altogether — is a problem they can’t solve on their own.