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January 6 Committee Says Criminal Referral on Trump to DOJ May Be Unnecessary

The DOJ can choose to charge Trump with crimes based on evidence already gathered, committee members have said.

Former President Donald Trump speaks to supporters at a rally on April 2, 2022, near Washington, Michigan.

The select committee investigating the January 6 attack on the U.S. Capitol is indicating that it may not make any direct referrals for criminal charges against former President Donald Trump.

Evidence collected by investigators for the committee suggests the former president probably committed a crime in his efforts to overturn the 2020 presidential election. Indeed, a ruling issued last week by District Judge David Carter, who ordered former Trump lawyer John Eastman to turn over documents to the select committee, described the actions of Trump’s campaign as a “coup in search of a legal theory.”

Still, January 6 committee members are indicating that a concluding criminal referral to the Justice Department may not be necessary at all. According to reporting from Politico, these members have noted that criminal referrals are more of a formality that the department can decide to move forward on or ignore.

“A referral doesn’t mean anything,” committee member Rep. Zoe Lofgren (D-California) said. “It has no legal weight whatsoever, and I’m pretty sure the Department of Justice has read [Carter’s] opinion, so they don’t need us to tell them that it exists.”

Committee chair Rep. Bennie Thompson (D-Mississippi) has also been noncommittal in pursuing a criminal referral from the congressional panel.

“Our job is … to look at the facts and circumstances around what occurred,” Thompson said to Politico, adding that Carter’s ruling “certainly indicates that, in his opinion, the president had something to do with what occurred.”

“There is credible evidence that the former President is engaged in criminal conduct,” Rep. Adam Schiff (D-California) also told Politico. “And I don’t think that can be ignored by the Justice Department.”

Committee members may also be concerned that such a referral could result in political backlash or create the appearance of political pressure on the DOJ from Congress to charge Trump with crimes. The possibility of televised hearings later this month, outlining to the public the case against Trump and his allies, could also render such referrals unnecessary, as the DOJ could make such a decision based on the evidence presented in the hearings.

The committee has also made clear that it believes Trump was involved in a “criminal conspiracy” to overturn the election, which the Justice Department is likely aware of. “Evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts,” lawyers for the committee wrote in a legal briefing early in March.

Nonetheless, committee members who have expressed little interest in making a criminal referral also have made statements indicating impatience with the DOJ.

“This committee is doing its job. The Department of Justice needs to do theirs,” Lofgren said during a recent committee hearing.

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