Members of the House panel investigating the Jan. 6, 2021, attack on the U.S. Capitol are quarreling over whether to make a criminal referral to the Justice Department (DOJ) after Chair Bennie Thompson (D-Miss.) said Monday the committee would make no such move.
“That’s not our job. Our job is to look at Jan. 6. What caused it and make recommendations after that … We don’t have the authority,” Thompson told reporters Monday night.
Thompson’s comments prompted a response from other lawmakers on the panel, an unusual public display for a committee whose members are fond of saying there is “no daylight” between them.
“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,” Vice Chair Liz Cheney (R-Wyo.) wrote on Twitter on Monday night.
“Our committee has yet to vote on whether we will recommend criminal referrals to the Department of Justice. If criminal activity occurred, it is our responsibility to report that activity to the DOJ,” Rep. Elaine Luria (D-Va.) also tweeted.
Thompson clarified Tuesday that a referral still remains a possibility.
“I said that our primary responsibility is to look at the facts and circumstances that brought about Jan. 6,” he told reporters Tuesday.
“Whatever we refer, our understanding is Justice will have to look. But we’re not there. We’re still in the discovery phase of our work,” he added.
Whether the committee makes such a recommendation is largely symbolic. Even with a referral, the decision on whether to file charges rests solely with the Justice Department.
Such a decision would also require significant evidence, something it’s not yet clear the committee will provide.
At a Monday press conference on gun trafficking, Attorney General Merrick Garland declined to comment on any of the evidence that has emerged in the select committee’s hearings but confirmed he is following the public phase of the panel’s investigation.
“I am watching and I will be watching all of the hearings,” Garland said. “And I can assure you that the Jan. 6 prosecutors are watching all of the hearings as well.”
In some ways the committee has already made clear they believe criminal actions took place. They did so in a case arguing John Eastman, one of Trump’s attorneys, cannot shield documents under attorney-client privilege because the underlying criminal activity implicates the crime-fraud exception.
“We said that we thought that there was a conspiracy to obstruct a federal proceeding and we know there was conspiracy to deprive people of an honest election,” committee member Rep. Jamie Raskin (D-Md.) told reporters Tuesday.
The judge largely sided with the committee in that case, calling Eastman’s recommendations to Trump “a coup in search of a legal theory.”
But while Congress can make criminal referrals for contempt of Congress, something it has done when those the committee subpoenaed defied the compulsory orders, it does not typically do so in other matters.
“But Congress doesn’t go out looking for federal offenses and then make statutory reports to the Department of Justice. I think that’s just a semantic confusion,” Raskin added. “We have the authority again to write whatever we want about what happened to but the press keeps asking whether we’re going to be making criminal referrals to the Department of Justice, and I think that that’s just a category confusion.”
Emily Brooks contributed. Updated at 5:07 p.m.