(The Hill) – The Jan. 6 Select Committee has signaled it intends to explore potential criminal wrongdoing by former President Trump, marking a significant escalation for the investigation that could put pressure on the Biden administration. The panel has said it could refer Trump to the Justice Department for prosecution if it finds damning evidence, in what would be seen as an open invitation to Attorney General Merrick Garland to be more aggressive toward the former president than he has been in his tenure thus far.
Rep. Liz Cheney (R-Wyo.), the select committee’s vice chair, gave the first indication at a hearing earlier this month that the panel is examining whether Trump committed a crime.
Quoting the statutory text for a felony obstruction offense, Cheney said that a key question for the select committee investigation is, “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes?”
Obstruction of an official proceeding is a charge that carries a maximum possible sentence of 20 years in prison. Federal prosecutors have wielded it against hundreds of rioters accused of participating in the attack on the Capitol.
But bringing the same charge against a president who never set foot in the building would require far more complex legal and political calculations.
“The challenge is … this undefined territory of the circumstances under which an executive official crosses the line between exercising executive power to actual obstruction of justice,” said Daniel Hemel, a University of Chicago law professor.
The comments about Trump’s potential wrongdoing come after months of growing frustration among Democrats and Trump critics that Garland and the Department of Justice (DOJ) aren’t doing enough to address potential illegal activity in the highest levels of the previous administration.
Any criminal referral from the select committee alleging that Trump violated the law would be an overt escalation of lawmakers’ efforts to pressure the Biden DOJ into being more aggressive toward the former president.
But criminal referrals from congressional investigators have no legal weight to compel federal prosecutors to bring charges, unlike the criminal contempt of Congress referrals that must be approved by a floor vote in the House and have already resulted in charges against Stephen Bannon, Trump’s former White House strategist who pleaded not guilty last month to a pair of misdemeanors for defying the select committee’s subpoenas.
Jeff Robbins, a former federal prosecutor who has also served as an investigative counsel on two Senate committees, said that in order for such a referral to be persuasive to federal prosecutors, it must be backed up by solid evidence that would not only support bringing charges but show evidence of guilt beyond a reasonable doubt.
“A committee that wants to make a persuasive referral will be as specific and as detailed and as evidence-based as possible, delivering something as close to a basis for an indictment on a silver platter as can be provided,” he said.
Robbins said that any referral involving a former president would be held to an even higher standard, but added that the committee’s credibility would support its findings in the eyes of the Justice Department.
“There will be an inclination to review very, very, very carefully any criminal referral involving Donald Trump, to kick the tires again and again and again,” Robbins said. “But on the other hand, they’ll treat a criminal referral by this committee — given its leadership and the quality of the lawyers — as a serious document if that’s what blows its way.”
Throughout the first year of the Biden administration, Garland has sought to keep politics at arm’s length as he inherited a department that had been repeatedly used to further Trump’s political ends and protect his personal interests over the previous four years.
In some high-profile cases, Garland’s DOJ has backed the legal positions pushed by the department during the Trump administration, including defending the former president in a defamation suit from E. Jean Carroll, who accused Trump of raping her in the ’90s, and arguing that an internal DOJ memo clearing him of wrongdoing in connection with the Mueller investigation should remain under wraps.
The department has shown little sign that it’s pursuing a criminal investigation into Trump.
“It’s going to be really hard to convict him here in part because I don’t think we have a Nixon Watergate-style smoking gun,” Hemel said, noting that even if a jury is filled with people who “hate Trump with every bone in our body,” they might be hesitant to convict him of obstructing an official proceeding.
And pursuing charges against Trump could be a fraught undertaking beyond the political implications. Such a prosecution would be unprecedented and could be undermined by legal uncertainties surrounding whether a president could be charged with a crime for actions he took while in office.
The obstruction charge that federal prosecutors have brought against many of the rioters in what is considered to be a novel interpretation of the statute has so far survived a series of legal challenges from defendants, but it remains to be seen whether juries will find the obstruction cases persuasive.
“The courts have made clear in at least three different rulings that the rioters on the ground can be prosecuted for conspiracy charges; there is no reason to believe, evidence permitting, that the former president can’t be similarly charged,” Bradley Moss, a national security law expert, told The Hill by email.
“If DOJ is to take this politically-explosive step, they no doubt have identified admissible evidence that Trump intended to obstruct the certification proceedings, that his actions in recommending the mob march on the Capitol was more than a mere throwaway line, and that he was aware of efforts by his ‘war room’ to intervene if the mob did in fact prevent Congress from completing its certification process,” Moss said.
But Hemel sees the downside of losing the case being a far worse outcome, arguing an unsuccessful criminal prosecution of Trump would only strengthen the former president and heighten the threat he poses to American democracy.
“There was a lot of criminal activity on Jan. 6. Are they building a case against President Trump? I don’t think so. And, gosh, I think I’m glad that DOJ isn’t devoting resources to a fool’s errand effort to tear the country further apart and further elevate the political profile and demagogic myth of Trump,” Hemel said.
It’s unclear what evidence, if any, the committee has gathered to support a criminal referral aimed at the former president. But if the lawmakers are able to make a persuasive public case that Trump violated the law, some believe it would be important for the DOJ to follow through in order to send the message that nobody is above the law.
Katherine Hawkins, a senior legal analyst at the nonpartisan Project on Government Oversight, believes it’s important for the select committee to reach its own conclusions about whether Trump violated the law and, if it finds that he did, to clearly articulate the case against him.
Hawkins said that the DOJ’s inclination to defend the legality of executive branch actions makes the congressional investigation even more crucial. She pointed to the Senate Intelligence Committee’s investigation into the CIA’s torture practices, a portion of which was made public in 2014 that found the agency had exceeded the legal justification for the practices and engaged in a cover-up. Despite the Senate panel’s findings, the DOJ never prosecuted anyone for their role in torturing terror suspects.
“I think that the committee should seriously consider making a well-supported referral, because otherwise we just get silence from DOJ, which could be [doing a] diligent investigation, theoretically, but given how the torture investigation went, how the Department of Justice approaches executive law breaking in general and what we’ve seen from Garland, I doubt it,” Hawkins said.
She added that the committee’s findings will be valuable even if they make a referral that the DOJ chooses not to act upon.
“Just getting the truth out is valuable in itself,” Hawkins said. “Knowing how close we came and what mechanisms could be in place to prevent that from happening again is really important. But also if there’s evidence of unaddressed crimes that we don’t know if the Department of Justice is going to investigate, I think it’s definitely appropriate for the committee to put that at the DOJ’s feet and say, ‘What are you doing with this? What’s going on here?’”