The expected move by the January 6 committee to formally ask the Department of Justice to prosecute former President Donald Trump over his role in the US Capitol insurrection will make history, whether or not charges are ever brought.
The committee, which saw its mission as essential to saving US democracy, will hold a last public meeting and is expected to call on the Justice Department to charge Trump and potentially some allies over his attempt to overturn the 2020 election in one of the darkest periods in modern politics.
Criminal referrals would be a symbolic move since the committee has no power to initiate legal proceedings itself. The Justice Department has its own federal investigation into January 6, 2021, now overseen by a special counsel. But, if merited by troves of evidence collected in hundreds of interviews and a summer of dramatic televised hearings, referrals would represent a moment of stark accountability for January 6. The historic recommendation of a prosecution against an ex-president would also lay down a marker for future elections and renegade presidents after an attack on democracy with no parallel.
Yet the fractured state of US politics and Trump’s incessant efforts to distort the truth about 2020, even as he launches a new White House bid, leave the committee clouded by familiar questions over its effectiveness, legitimacy and legacy as it contemplates its fateful final act.
The panel is expected to be wiped out next month by an incoming Republican House majority featuring scores of lawmakers who voted not to certify the last presidential election and who still whitewash that day of infamy nearly two years later.
But before then, the panel is expected to release its final report on Wednesday. There could be another moment of vulnerability and embarrassment on Tuesday for the ex-president when the Democrat-led House Ways and Means Committee meets to discuss what, if anything, to do with his tax returns that it finally received after a years-long court battle.
A picture of presidential incitement and negligence
In its highly produced hearings, the committee – with its seven Democrats and two Republicans who split with their own party to take part – painted scenes of horrific violence and intense efforts by Trump to steal Joe Biden’s presidency.
A Capitol Police officer told how she had slipped on spilled blood during the melee caused when the ex-president’s mob smashed its way into the Capitol. A mother and daughter who worked as election workers in Georgia described how they faced racist threats after Trump’s lawyer, Rudy Giuliani, accused them of vote stealing. Rusty Bowers, the outgoing Republican speaker of the Arizona state House, testified that Trump’s calls for him to meddle with the election were “foreign to my very being.”
Often, it was Republicans – some who were with Trump in the West Wing on January 6 – who courageously testified about his assault on the Constitution, including Cassidy Hutchinson. The ex-aide to White House chief of staff Mark Meadows recalled, “It was unpatriotic. It was un-American. We were watching the Capitol building get defaced over a lie.”
From the moment that conservative retired federal judge J. Michael Luttig warned in a June committee hearing that Trump and supporters still posed “a clear and present danger to American democracy,” it’s been clear the panel believes that Trump was in the middle of an alleged election-stealing conspiracy. With that in mind, it would be surprising if the 45th president, who earned his second impeachment over the insurrection, was not referred to the DOJ for the possibility of criminal action.
The case against Trump
Each committee hearing was a piece in a broad case against Trump. The panel sought to show he lost the 2020 election, that he knew that Biden won and that there was not significant fraud but that he sought to overturn the result by harassing election workers and inducing state GOP officials to steal votes.
Furthermore, the committee contended in its hearings that Trump also helped to plot a nefarious scheme to use fake electors to subvert the election in Congress. When those efforts failed, after then-Vice President Mike Pence refused to wield powers he did not have, the committee argued that Trump called a mob to Washington and incited a vicious attack on the Capitol. Then, committee members argued, his inaction as the violence raged amounted to desecrating his sworn duty to protect Congress, the Constitution and the rule of law.
“This is someone who in multiple ways tried to pressure state officials to find votes that didn’t exist. This is someone who tried to interfere with a joint session, even inciting a mob to attack the Capitol,” Democratic Rep. Adam Schiff, the chair of the House Intelligence Committee and a member of the January 6 committee, said on CNN’s “State of the Union” on Sunday. “If that’s not criminal, then I don’t know what it is.
A referral would hike pressure on the DOJ
Yet the committee is not in control of the ultimate fate of its work. While referrals of Trump and allies would be a huge moment, the panel cannot compel the Justice Department to open a prosecution of a former president whose 2024 campaign guarantees the divisions sparked by January 6 will fester in another US election.
The committee is looking at three potential and rarely tried criminal charges against the former president, including insurrection, obstruction of an official proceeding and conspiracy to defraud the federal government, sources told CNN last week. The committee has also weighed referrals or other action against Trump allies, such as attorney John Eastman and former Justice Department official Jeffrey Clark, who were allegedly involved in a fake elector scheme. And Schiff said on Sunday the panel would also consider possible ethics and legal sanctions against others, including Republican lawmakers who defied committee subpoenas.
One question hanging over the congressional committee, however, is whether the higher standard of evidence required by a court could lead prosecutors to believe it would be hard to convict the former president. While the committee’s hearings were packed with evidence suggesting a weeks-long pattern of wrongdoing by Trump, witnesses and evidence were not subjected to the kind of challenge and cross-examination seen in court, so it’s hard to judge the strength of any criminal case over Trump.
Questions cloud the committee’s legacy
All of these caveats about the work of the panel raise these questions.
- Was the committee a high-profile act of public accounting that will ultimately be forgotten once it is swept away by the House GOP majority?
- Could the act of sending criminal referrals to the DOJ risk furthering the perception of politicization of separate investigations into the aftermath of January 6?
- Will an impression that Trump is being hounded by any referrals nearly two years after he left office help rally Republicans to his misfiring 2024 campaign?
- And do Americans as a whole, at a time of national strain amid high inflation and the aftermath of a once-in-a-century pandemic, really care about events that rattled US democracy nearly two years ago?
On the first question, committee members – including Republican Vice Chair Liz Cheney, who lost her seat in Wyoming over her determination to hold Trump to account – have long argued that it is performing a service for posterity and have left a strong impression they want to fatally damage his future political hopes.
“Every American must consider this,” Cheney said at one of the committee’s public hearings, in July. “Can a president who is willing to make the choices Donald Trump made during the violence of January 6 ever be trusted with any position of authority in our great nation again?”
The refusal of many of Cheney’s fellow Republicans to even acknowledge the ex-president’s conduct suggests that her effective sacrifice of her career in the House GOP may be in vain. Certainly, there was little sense during the compelling hearings that the public was as transfixed with this act of accountability as it was, for instance, with the Senate Watergate hearings in the 1970s that helped lead to the resignation of President Richard Nixon. Today’s polarized times and the power of conservative media to distort what really happened on January 6 may help explain this dichotomy.
Still, Americans rejected many of Trump’s midterm candidates in swing state races who had amplified his false claims of 2020 election fraud, suggesting some desire to protect American democracy.
It is impossible to quantify how the committee’s work affected voters in November. But it kept evidence of Trump’s insurrection in the news all this year, even as the ex-president launched a new campaign seen by many observers as a way to cast the probes into his conduct as politically motivated persecution. This is especially valuable as some pro-Trump Republicans, like Georgia Rep. Marjorie Taylor Greene, escalate their attempts to distort what happened in the unprecedented attack on the Capitol.
How the committee may help the DOJ
Although the committee’s days are numbered, its work may live on. One of special counsel Jack Smith’s two criminal probes into Trump is looking at events surrounding January 6, and prosecutors could use the masses of testimony and other evidence that the committee has unearthed. Once the final report is released on Wednesday, the panel is expected to start releasing transcripts from the more than 1,000 interviews it conducted.
“This is a massive investigation that the committee has undertook. Huge amounts of evidence, a huge amount of witnesses being identified,” former federal prosecutor Shan Wu told CNN’s Pamela Brown on “CNN Newsroom” on Saturday.
“I think it’s the detail that accompanies the referrals themselves and the report that will give a roadmap to DOJ. DOJ has been kind of late to this party and they are playing catch-up but that detail could be very helpful to them and will put a lot of pressure on them as well.”
Whatever its immediate impact on Trump, the 2024 presidential race and the Justice Department, the culmination of the committee’s work marks a pivot in history when Americans faced a choice whether to confront an unprecedented effort by an aberrant commander in chief to overrule the voice of the people and the chain of peaceful transfers of power from one president to the next.
If nothing else, future generations will be able to judge the determination of the panel members, especially its two Republicans, and the courage of witnesses who told the truth to try save democracy.
GOP Rep. Adam Kinzinger, who, like Cheney, served on the committee in defiance of his party and will not be returning to Congress, explained his actions in seeking to hold Trump to account in his retirement speech on the House floor last week.
“Unfortunately we now live in a world where a lie is Trump’s truth, where democracy is being challenged by authoritarianism,” the Illinois Republican said.
“If we, America’s elected leaders, do not search within ourselves for a way out, I fear that this great experiment will fall into the ash heap of history.”