The House select committee investigating the January 6, 2021, insurrection is set to make announcements at its final public meeting on Monday about criminal referrals to the Justice Department.
So what is a criminal referral?
A referral represents a recommendation that the Justice Department investigate and look at charging the individuals in question. The House committee’s final report – to be released Wednesday – will provide justification from the panel’s investigation for recommending the charges.
But any move by the January 6 panel to approve a referral would be largely symbolic because a referral by no means obligates federal prosecutors to bring such a case.
With the federal investigation now being led by special counsel Jack Smith, it appears Justice Department investigators are already looking at much of the conduct that the select committee has highlighted.
But whether the department brings charges will depend on whether the facts and the evidence support a prosecution, Attorney General Merrick Garland has said. Garland will make the ultimate call on charging decisions.
In addition to criminal referrals, Democratic Rep. Bennie Thompson of Mississippi, the chair of the January 6 committee, has said the panel could issue five to six other categories of referrals, such as ethics referrals to the House Ethics Committee, bar discipline referrals and campaign finance referrals.
The committee is eyeing multiple alleged crimes for a referral of former President Donald Trump to the Justice Department, CNN reported last week.
Among them are insurrection, obstruction of an official proceeding and conspiracy to defraud the federal government, according to a source familiar with the matter.
For the latter two, the lawmakers can rely on an opinion from a federal judge in California, who wrote earlier this year that there was evidence that Trump and his allies were plotting to defraud the US government and to obstruct an official proceeding. The opinion was handed down by US District Judge David O. Carter in a dispute over whether the House could access certain emails sent to and from former Trump attorney John Eastman.
The judge cited emails discussing Trump’s awareness that certain voter fraud claims being made in court were inaccurate as evidence of a plot to defraud the federal government. To explain his finding of evidence of obstruction, the judge pointed to emails that showed that the Trump team was contemplating filing lawsuits not to obtain legitimate legal relief, but to meddle in congressional proceedings.
A House referral for an insurrection charge would be a more aggressive move. It’s a crime to assist or engage in “in any rebellion or insurrection against the authority of the United States or the laws.” Judges have used the term “insurrection” to describe the January 6 attack on Congress’ certification of the 2020 presidential election.
But the Justice Department has not opted to bring the charge in its hundreds of US Capitol riot cases. Instead, prosecutors have relied on criminal statutes related to violence, obstruction of an official proceeding, and, in some limited cases, seditious conspiracy.
The panel has also weighed criminal referrals for a number of Trump’s closest allies including, Eastman, former White House chief of staff Mark Meadows, former Justice Department official Jeffrey Clark and Trump’s former lawyer Rudy Giuliani, multiple sources told CNN earlier this month.
Another source cautioned at the time that while names were being considered, there was still discussion to be had before they were finalized.