Four possible outcomes for Trump from Jan. 6 committee’s blockbuster finale
Sarah Westwood
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Former President Donald Trump will soon learn what the Jan. 6 select committee has in store for him after nearly two years of probing the final weeks of his presidency.
Committee Chairman Bennie Thompson (D-MS) has said the panel is considering referring a number of people involved with the Jan. 6 violence to the Justice Department, the Federal Election Commission, or other congressional committees for further investigation.
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That could collide with Trump’s presidential ambitions as he prepares to ramp up a 2024 campaign for the White House, which he announced last month.
Here are four scenarios Trump could face at the hands of the select committee.
NO CRIMINAL REFERRAL
The panel, led by Democrats and two Republicans who won’t be returning to Congress in January, could decide not to issue a criminal referral for Trump at all.
Instead, they could focus on other targets: former chief of staff Mark Meadows, for example, or controversial Trump lawyer John Eastman.
Declining to refer Trump to the Justice Department would likely rankle liberal activists, who have long called for the prosecution of Trump on an ever-shifting list of alleged wrongdoings.
But the committee could defer to the special counsel that Attorney General Merrick Garland appointed earlier this month to oversee a number of Trump-related criminal investigations, including the events surrounding Jan. 6 and Trump’s alleged mishandling of classified documents at his Florida home.
Members could say they want those investigations to proceed without the appearance of partisan interference, which critics say a Democrat-led congressional referral would create.
CRIMINAL REFERRAL
The committee could well decide to refer Trump criminally to the Justice Department given that its entire investigation centered on determining his level of wrongdoing before and after the riots.
Investigators interviewed hundreds of witnesses and reviewed thousands of documents to get a sense of what Trump and his team were doing during the riots and whether the former president bore responsibility for inciting or prolonging the violence at the U.S. Capitol.
What precise laws Trump is alleged to have broken, according to the committee’s view, are not yet clear.
House lawmakers have accused Trump of indulging in a conspiracy to stop the legally mandated counting of Electoral College votes, but they have not yet laid out exactly which laws they believe he broke. The referral could cover more alleged bad behavior surrounding the riots, including any witness tampering or obstruction they may believe he committed during the multiple investigations of the episode.
DOJ PICKS UP CRIMINAL REFERRAL
The Justice Department could choose to prosecute Trump based on the nature of the committee’s criminal referral.
President Joe Biden’s Department of Justice has already shown a willingness to act on what House Democrats say is unlawful conduct.
Last year, the Justice Department prosecuted former Trump aide Steve Bannon after House Democrats and a handful of Republicans voted to hold him in criminal contempt of Congress. Bannon had flouted the select committee’s demand for cooperation with its Jan. 6 investigation.
Bannon was later found guilty of the charge.
DOJ IGNORES CRIMINAL REFERRAL
A congressional criminal referral is, ultimately, a symbolic move from lawmakers who want to formalize allegations of illegal activity that arise from their investigations.
The Justice Department is under no obligation to pursue any referral — and in the past, it often has not.
DOJ officials simply ignored a criminal referral from House Republicans in 2014, for example, after GOP lawmakers voted to refer former Internal Revenue Service official Lois Lerner for prosecution over alleged targeting of conservative groups.
The Justice Department could choose to do so in the case of a Jan. 6 committee referral, for a variety of reasons.
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Biden’s DOJ could decide to avoid creating the perception that it’s targeting a political opponent of Biden, given that Trump has already announced his campaign for president in 2024.
Justice Department officials could also decide the case they’re building against Trump on their own is stronger than the one built by the committee and set aside the House lawmakers’ evidence in favor of their own.