The committee investigating last year’s attack on the U.S. Capitol says it is undecided on the question of whether to issue a criminal referral of former President Trump for his role in the rampage. For a growing number of Democrats watching from the sidelines, however, the answer is already clear.
“I think they should do criminal referrals,” said Rep. Juan Vargas (D-Calif.). “Obviously, with what they’ve uncovered, there’s criminal conspiracy there. And having the information, I think they should refer it to the Department of Justice for prosecution. It all starts at the top.”
Vargas is hardly alone.
Democrats have long considered Trump to be the central figure in the Jan. 6, 2021, attack, and any lingering Democratic doubts about Trump’s role appear to have been put to rest by the first two public hearings of the committee.
“Given what we’ve heard in the last couple days I think there’s enough evidence there — or at least questions — that warrant the potential for the DOJ to open a grand jury investigation on the president,” said Rep. Adriano Espaillat (D-N.Y.). “There’s no question about it.”
The issue of criminal referrals was thrust into the spotlight on Monday, following the House select committee’s second public hearing, when Chairman Bennie Thompson (D-Miss.) said the panel would not be issuing formal referrals to the Department of Justice (DOJ).
“No, that’s not our job,” he told reporters. “Our job is to look at the facts and circumstances around Jan. 6, what caused it, and make recommendations after that.”
The comments caught the attention of some other leading figures on the committee, most notably Rep. Liz Cheney (R-Wyo.), the vice chair, who made clear that the question of referrals remains unresolved.
“The January 6th Select Committee has not issued a conclusion regarding potential criminal referrals,” Cheney tweeted. “We will announce a decision on that at an appropriate time.”
Rep. Elaine Luria (D-Va.), another member of the select committee, also weighed in to emphasize that the panel “has yet to vote” on whether to issue criminal referrals. She said it was part of the committee’s charge to do so if investigators discover that crimes were in fact committed.
“If criminal activity occurred, it is our responsibility to report that activity to the DOJ,” Luria tweeted.
The Justice Department has already charged more than 800 people in connection to the deadly riot, including members of several white nationalist groups charged with seditious conspiracy. While a criminal referral from the select committee carries no legal weight, it would put additional pressure on DOJ prosecutors to get more aggressive when it comes to adding members of Trump’s inner circle — or the president himself — to that list of indictments.
Thompson on Tuesday sought to clarify his remarks, saying he hasn’t ruled out the possibility of criminal referrals when the investigation wraps up.
“When we finish our work, I’m sure we’ll do whatever we need to,” he said. “We’ve actually not discussed criminal referrals. Individuals have talked about it, but our primary mission is to get all of the facts and circumstances that brought about Jan. 6. And that’s what we’re doing.”
Many Democrats not sitting on the panel say they’ve seen enough already to implicate Trump.
“Our justice system does not protect the powerful,” said Rep. Mark Takano (D-Calif.), who backs the select committee issuing criminal referrals. “All of us are subject to justice under the law.”
The debate arrives almost a full year into the select committee’s investigation. Monday’s hearing featured damning testimony from a number of former Trump aides who said they told Trump directly that there was no evidence of significant fraud in the 2020 election. Trump ignored them, claiming victory on election night and later asserting that it was only a vast conspiracy that led to President Biden’s win — a baseless claim Trump continues to make even 19 months later.
“I made it clear I did not agree with the idea of saying the election was stolen and putting out this stuff, which I told the president was bullshit,” William Barr, Trump’s former attorney general, told the committee.
Eric Herschmann, a onetime attorney for the Trump White House, echoed that message, telling investigators that the claims of a “rigged” election being made by Trump and his closest loyalists — including Rudy Giuliani — were “nuts.”
“They never proved the allegations that they were making and they were trying to develop,” Herschmann testified.
Trump’s allies, including most Republicans on Capitol Hill, have rushed to the former president’s defense, downplaying the violence of Jan. 6 and accusing Democrats of conducting a partisan “witch hunt” designed solely to hurt Republicans.
Some are making the argument that Trump cannot be held criminally liable for his post-election actions because there’s been no evidence that he’s ever believed the reality of his defeat.
“Not sure what Dems accomplished today,” Mick Mulvaney, Trump’s former acting chief of staff, tweeted after Monday’s hearing. “Some interesting sidelights (on, say, fundraising) but they had nothing to show Trump believed he lost. In fact, they showed the exact opposite. They made the case that he probably should have known … but that is different.”
Trump’s critics have dismissed that argument, pointing to the sheer number of GOP aides, legal experts and campaign operatives pressing him to abandon his claims.
“The test of his criminality is not what he believed, because what he believes is determined by what he wants,” Takano said. “He’s someone who’s weaseled out of accountability all his life. And the Jan. 6 commission is starting to close in on that accountability.”
Not every Democrat is crazy about criminal referrals of Trump, however.
Rep. Jan Schakowsky (D-Ill.) said she supports such referrals for certain figures suspected of committing crimes. But she’s also warning Democrats to tread carefully when it comes to Trump himself.
“I would like to see some criminal referrals,” Schakowsky said. “I think there’s some question of whether or not we want to include the president of the United States right now — not because of lack of evidence, but because of how divisive it could be for our country.”
Critics of Trump hope the Jan. 6 panel can reach one viewer in particular: Attorney General Merrick Garland, who said this week that he’s watching all the proceedings.
As Garland weighs the thorny question of whether to charge Trump in connection to Jan. 6, the pressure he’s facing is only getting stronger.
“Honestly, I think it would be a disgrace if the Justice Department didn’t prosecute him,” Vargas said.
“I hope that the attorney general has the courage to move forward,” he continued. “There was some question when they were going to appoint him to the Supreme Court if he had really what it took to be a Supreme Court justice. We’re going to find that out right now.”
Rebecca Beitsch contributed.