On Monday, June 13, the first crack appeared in the otherwise cohesive wall of the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol. The fissure opened when committee Chairman Bennie G. Thompson (D-Miss.) told reporters after that day’s hearing that the committee would not be making any criminal referrals to the Justice Department of former President Donald J. Trump or anyone else.
Almost immediately, Vice Chair Liz Cheney (R-Wyo.) tweeted that the committee “has not issued a conclusion regarding potential criminal referrals,” and will do so “at an appropriate time.” Another committee member, Rep. Elaine Luria (D-Va.) issued her own conclusion that “if criminal activity occurred, it is our responsibility to report that activity to the DOJ.” Other committee members, taken aback by the chairman’s comments, were stumbling to respond, but most chose to keep their powder dry until the committee could talk it over privately.
Meantime, a committee spokesperson released a statement to CNN the following day which attempted to clarify the chairman’s comments — sort of a sideways walk-back: “The committee has no authority to prosecute individuals but is rather tasked with developing facts….” Two sentences later, the spokesperson said the committee would gather “all relevant information, offer recommendations, and, if warranted, make criminal referrals.”
It is doubtful the chairman’s remarks on referrals were an inadvertent slip of the tongue. There have certainly been private and even public surmises as to whether criminal referrals are advisable, perhaps even some guidance from above. Ranking committee Democrat Zoe Lofgren (Calif.), who is close to Speaker Nancy Pelosi (D-Calif.), said publicly in March that a criminal referral would be “unproductive” because “it carries no legal weight.”
That same month, the Justice Department announced it would not be prosecuting former Trump chief of staff Mark Meadows and social media director Dan Scavino on House-approved contempt of Congress charges for defying committee subpoenas to appear. No reason was given. That same day, however, the department announced it was proceeding against former Trump White House trade adviser Peter Navarro on the same charges. It was an obvious muscle-flexing demonstration of prosecutorial discretion.
Unlike contempt of Congress citations, criminal referrals have no formal status in law or in Congress’s rules. Any citizen can make them. There are three good reasons why the committee would avoid making criminal referrals on Trump or anyone else. First, as Lofgren mentioned, such referrals from Congress have no legal status at DOJ. Most of such referrals from Congress, usually made by committee chairmen, have died on the department’s doorstep. Justice is very sensitive about being perceived as doing Congress’s political bidding, and prides itself on its independence and non-partisanship.
The second reason for not filing a criminal referral is a matter of optics. One of the main criticisms House Republicans level at the select committee is that its investigation is simply a smokescreen for a public show trial – a “kangaroo court.” Making a criminal referral to DOJ would only feed and confirm that accusation. Most of the public media’s focus would be on whether the committee finds Trump criminally culpable for the Jan. 6 riot and would overshadow any other findings and recommendations the committee will presumably make.
A third reason a criminal referral would be resisted is that Trump’s role in claiming the election was stolen from him and whether he incited the violence that ensued is not necessarily a slam-dunk case. For Trump to be convicted requires proof of criminal intent on his part. Did he knowingly intend to break the law? Judging from much of the testimony already aired, it is not clear he was purposely acting illegally. As former Attorney General Bill Barr testified, at times the president seemed “detached from reality” and prone to believe the many “fantastical” conspiracy theories presented to him. Someone’s mental state is difficult enough to discern, let alone prove.
The committee will be providing a valuable service to Congress and the country by sorting through and reporting on all the evidence it has gathered as to exactly what happened on Jan. 6 and why, and by making any recommendations for preventing its recurrence in the future. Its final report should speak for itself.
Attorney General Merrick Garland has said he is following all of the committee’s hearings closely and is pressing for copies of its evidence. And it is abundantly clear his department is vigorously engaged in investigating and prosecuting those responsible for the violent breach of the Capitol.
The select committee has several mandates to fulfill before it expires at the end of this year. It has too little time to engage in politically fraught, criminal referrals lacking any impetus or impact. Let Justice do the justice.
Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, fellow at the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.