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For months, members of the Jan. 6 committee debated whether to make criminal referrals to the Justice Department as part of the larger congressional investigation. As the bipartisan select panel concludes its work, that debate has come to an end.
At the outset of today’s “business meeting” — this, technically, was not a hearing — Rep. Bennie Thompson, the committee’s Democratic chairman, told the public, “[B]eyond our findings, we will also show that evidence we’ve gathered points to further action — beyond the power of this committee or the Congress — to help ensure accountability under the law. Accountability that can only be found in the criminal justice system.”
As the meeting concluded, the panel acted on that very point. My MSNBC colleague Jordan Rubin reported:
The House Jan. 6 committee has decided to recommend the Justice Department pursue criminal charges against former President Donald Trump, including obstructing an official proceeding, conspiracy to defraud the United States, conspiring to make false statements, and insurrection.
Not surprisingly, the committee's support for the criminal referrals was unanimous.
As today’s proceedings made clear, the bulk of the focus was on the former president and what Democratic Rep. Jamie Raskin described as the “more than sufficient evidence” to refer the matter to federal prosecutors. But the committee also made clear that, as far as congressional investigators are concerned, Trump isn’t the only one who broke the law.
There were, for example, multiple references to attorney John Eastman. An executive summary of the Jan. 6 committee’s report also added, “Kenneth Chesebro was a central player in the scheme to submit fake electors to the Congress and the National Archives,” though Chesebro's name did not come up during today's presentation on Capitol Hill.
Similarly, the summary points to former White House chief of staff Mark Meadows and Rudy Giuliani as also allegedly having conspired to defraud the United States.
So, what happens now? The significance of such criminal referrals is a subject of some debate.
As MSNBC’s Rubin explained in an item published this morning, such referrals “are just that — referrals. If you’re expecting them to automatically lead to charges against former President Donald Trump, you should temper your expectations.”
Quite right. As a procedural matter, such a move appears largely symbolic: Federal prosecutors make their own decisions about which cases to pursue, and while Congress is free to make suggestions, such requests have no force of law. It’s unlikely that today’s developments will, in and of themselves, make prosecutions more likely.
What’s more, there’s some recent history to consider: Lawmakers encouraging specific prosecutions often go overlooked by prosecutors.
But that doesn’t mean the referrals are altogether irrelevant.
Right off the bat, it's important to understand that the Jan. 6 select committee isn’t just making hollow recommendations about possible criminal charges; investigators are also providing the Justice Department with extensive evidence — evidence that prosecutors may not have already seen — that could be used in upcoming cases.
I lost count of how many times I heard members on the dais this afternoon reference the word “evidence” — and unfortunately for Team Trump, all of that substantiated proof is headed to Main Justice.
What’s more, I’ve long believed that it’s not enough to simply point at evidence of alleged crimes, leaving it to others to assess. Special Counsel Robert Mueller and his team tried that, releasing a fairly detailed report that highlighted all kinds of misconduct, and to this day, Trump and his followers continue to pretend that the Mueller report “exonerated” the former president, reality be damned.
In other words, there’s public value to making clear that the former president, during his White House tenure, allegedly obstructed an official proceeding, conspired to defraud the United States, conspired to make false statements, and incited an insurrection. Even if federal prosecutors already have reason to suspect this, a criminal referral helps bring the seriousness of the legal dispute into sharp relief for American citizens.
Finally, there’s a historical context to appreciate. Trump, his followers, and too many members of his team launched an attack on our democracy. A bipartisan congressional investigation uncovered evidence of multiple felonies committed by a former president during his time in the White House, and members agreed to bring all of this to the attention of federal law enforcement.
I can appreciate why many observers will dismiss this as political theater, but the historical weight of the circumstances adds a degree of significance that shouldn’t be quickly brushed aside.
No congressional committee has ever formally recommended federal criminal charges against a former American president. That's precisely what happened this afternoon.