Former President Donald Trump has yet another potential legal threat, and this time his troubles are coming from congressional lawmakers.
On Tuesday, Representative Bennie Thompson, the chair of the House Select Committee investigating the January 6 Capitol riot, told reporters that the panel has decided to make criminal referrals to the Department of Justice (DOJ) but that committee members have not narrowed who will be on the list and for what offenses.
Until this week, the decision over criminal referrals remained up in the air as committee members split on whether such a move should be made against Trump. Although a criminal referral is often looked at as symbolic because it carries no legal weight, experts said there is reason for the former president to fear a possible referral.
“Although the DOJ is independent, such a referral is more than symbolic,” Ion Meyn, an assistant law professor at the University of Wisconsin, told Newsweek. “A referral from a congressional committee that has conducted its own investigation is particularly influential. The referral would place significant pressure on the DOJ to prosecute, and the DOJ will be expected to justify any decision to decline the referral.”
Attorney General Merrick Garland so far hasn’t brought criminal charges against Trump, even as the Justice Department has launched two probes into the former president for his involvement in the attack on the Capitol and for the presidential records found at Mar-a-Lago.
Separately, Trump is under investigation by the Fulton County District Attorney’s Office for his efforts to overturn the results of the 2020 election in Georgia. The business practices of the Trump Organization are being probed by the Manhattan District Attorney’s Office, and the New York Attorney General’s Office has filed a civil suit against the company for alleged fraud.
Garland will ultimately be the decision maker on whether Trump is charged in relation to January 6, but the congressional referral add pressure for an indictment at the risk of appearing like he’s going for a politically motivated prosecution.
Republicans have already ramped up the narrative that Garland is operating a partisan DOJ despite his objections about the department remaining politically neutral.
Meyn said it’s likely that the Trump camp will portray a criminal referral as a political witch hunt, even though it carries no substantive authority or power. He said that narrative will only continue in tandem with any criminal case initiated by the DOJ.
Former federal prosecutor and former elected state attorney Michael McAuliffe said the more consequential issue isn’t the referral but rather the sharing of materials between the House committee and the DOJ’s new special counsel. Because the DOJ is forbidden from disclosing its investigative files with the congressional committee, sharing only goes one way: from the panel to the DOJ.
“A tension between the congressional committee and DOJ has existed for some time about if and when to share materials developed in the investigations,” McAuliffe told Newsweek. “In the end, the real justification for the congressional committee to make a formal criminal referral may be that it provides a clear basis to share its work with law enforcement.”
However, most of the evidence presented by the committee was already known to prosecutors, former prosecutor Neama Rahmani said. So, even though the referral could be symbolically significant, the legal basis for the referral is unlikely to change the direction of the DOJ’s probe or shed light on new information about Trump’s involvement in the riot.
“Garland has played his cards close to his vest, with no leaks from high-level officials at the Department of Justice, so only time will tell whether he will prosecute Trump for the events of January 6, the documents at Mar-a-Lago, or something else,” Rahmani said.