The House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol ended its final public meeting on Monday with a recommendation that the Justice Department pursue charges against former President Donald Trump.
Lawmakers recommended charges on four counts stemming from Trump’s effort to stay in power after losing the 2020 election — obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement and efforts to incite, assist, or aid or comfort an insurrection.
For more than a year, the bipartisan committee, made up of seven Democrats and two Republicans, has investigated the attack on the Capitol by thousands of Trump supporters pushing baseless claims that his election defeat to Joe Biden was the result of election fraud.
A subcommittee made up of the larger panel’s four lawyers — Reps. Jamie Raskin of Maryland, Zoe Lofgren and Adam Schiff of California and Republican Vice Chair Liz Cheney of Wyoming — presented their findings on referrals and other recommendations to the full panel.
Ahead of the hearing, Yahoo News spoke to David Sklansky, a Stanford Law professor and former federal prosecutor, in an effort to explain what a criminal referral is, what charges might be involved, and if they have any impact on the Justice Department, which is conducting its own investigation into Jan. 6. (Some responses have been edited for length and clarity.)
Yahoo News: How do congressional criminal referrals work?
Sklansky: A criminal referral by the committee would not be a formal legal step, so it’s not regulated by any legal rules or set procedures. For the committee to make a recommendation that particular individuals be considered for criminal prosecution would be just like you or me making that recommendation to the Department of Justice, except that the Department of Justice, and the country as a whole, are likely to pay more attention to what the committee says than to what you or I would say.
There’s no rule requiring the Department of Justice to give any special weight or attention to a recommendation by Congress, and there couldn’t be a rule like that without running into tension with the separation of powers.
What sort of charges could be recommended in these potential criminal referrals?
We know from charges that the Department of Justice has already brought, and for which it has secured convictions, that there are very serious charges that are on the table in connection with the events of Jan. 6, ranging from trespass at the low end to obstruction of justice and judicial conspiracy at the top end.
What’s the difference between a criminal referral and an indictment?
An indictment is a formal legal step. It formally initiates a criminal case, and under the rules of the federal criminal process, as well as the rules of many states, an indictment has to be approved by a grand jury. And whether or not the indictment comes from a grand jury — and in some states it doesn’t have to — it is a formal legal document that initiates a formal criminal case.
A criminal referral by a congressional committee just amounts to the committee saying to the Department of Justice, “We think that you should consider filing a criminal case.” It’s as though the committee wrote a letter or sent an email to the Department of Justice saying, “Hey, just thought you should know this is our view. We understand it’s your decision to make, but we think you should consider filing a criminal case.”
Do the members of the House select committee need to prove anything in order to submit a criminal referral to the DOJ?
No, they don’t. Again, it’s because it’s not a formal legal step, there are no special rules that govern it. And just like you or I wouldn’t need to prove anything before we wrote a letter to the Department of Justice saying, “We think you should think about filing a criminal case against some particular individuals,” in the same way, Congress doesn’t have to satisfy any proof standards before it expresses its opinion in that regard.
GOP Congressman Adam Kinzinger on the House select committee recently told ABC’s “This Week” that issuing criminal referrals will be an “important, symbolic” thing to do. What would it symbolize?
It would be an expression of the views of a committee that has spent an enormous amount of time investigating the events of Jan. 6, and I think has earned the respect of many, although certainly not all, Americans in that process.
I think it’s also worth remembering it’s a bipartisan committee. It’s true that the Republican leadership wound up deciding to boycott the committee, but it does have two Republican members. And so this is a committee that I think has done a remarkable job working through a whole range of factual uncertainties and disputes in connection with Jan. 6 and has obtained lots of important and, I think, enlightening testimony, much of which it has shared with the public in a series of hearings. So their views about whether particular individuals should be considered for criminal prosecution are the views of a remarkable congressional committee that I think will carry a lot of weight with the public — although not with all members of the public — and, I think, also with the Department of Justice.
How will any criminal referrals from Congress affect the investigation the DOJ is conducting on its own into Jan. 6?
It will affect that investigation just as a recommendation, but it will be a recommendation that I think people in the Department of Justice may well give a lot of attention to, precisely because of how carefully and tirelessly the committee has done its work.
While the House select committee’s criminal referrals don’t have a direct impact on the DOJ, what is the ultimate payoff for this investigation?
I think that wholly aside from whatever criminal referrals, if any, the committee makes, their work has been highly impactful. Their investigation, and the hearings that they held, painted a picture of what happened on Jan. 6 that was far more detailed and far more vivid than anything we had before the committee did its work. And I think that their work did a lot to change the way many people in the country think about those events, and to deepen the understanding that the country has of what happened on Jan. 6 and in the days leading up to it.
If charges were to ultimately be filed against former President Donald Trump for his role in the Jan. 6 attack on the Capitol, could he face jail time?
Absolutely. I mean, like any other person, he can be charged with crimes and tried for those crimes, and if convicted, sentenced. And many of the charges that have been brought in connection with the Jan. 6 assault on the Capitol have resulted in serious sentences.[The U.S. Constitution doesn’t explicitly prohibit someone with a criminal indictment or conviction from running for president — so Trump could still run for president in 2024. However, a separate provision of the Constitution says a public official who “engaged in insurrection or rebellion” against the government is prohibited from holding office again.]