On Monday, June 13, the first crack appeared in the otherwise cohesive wall of the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol. The fissure opened when committee Chairman Bennie G. Thompson (D-Miss.) told reporters after that day’s hearing that the committee would not be making any criminal referrals to the Justice Department of former President Donald J. Trump or anyone else.
Almost immediately, Vice Chair Liz Cheney (R-Wyo.) tweeted that the committee “has not issued a conclusion regarding potential criminal referrals,” and will do so “at an appropriate time.” Another committee member, Rep. Elaine Luria (D-Va.) issued her own conclusion that “if criminal activity occurred, it is our responsibility to report that activity to the DOJ.” Other committee members, taken aback by the chairman’s comments, were stumbling to respond, but most chose to keep their powder dry until the committee could talk it over privately.
Meantime, a committee spokesperson released a statement to CNN the following day which attempted to clarify the chairman’s comments — sort of a sideways walk-back: “The committee has no authority to prosecute individuals but is rather tasked with developing facts….” Two sentences later, the spokesperson said the committee would gather “all relevant information, offer recommendations, and, if warranted, make criminal referrals.”
It is doubtful the chairman’s remarks on referrals were an inadvertent slip of the tongue. There have certainly been private and even public surmises as to whether criminal referrals are advisable, perhaps even some guidance from above. Ranking committee Democrat Zoe Lofgren (Calif.), who is close to Speaker Nancy Pelosi (D-Calif.), said publicly in March that a criminal referral would be “unproductive” because “it carries no legal weight.”
That same month, the Justice Department announced it would not be prosecuting former Trump chief of staff Mark Meadows and social media director Dan Scavino on House-approved contempt of Congress charges for defying committee subpoenas to appear. No reason was given. That same day, however, the department announced it was proceeding against former Trump White House trade adviser Peter Navarro on the same charges. It was an obvious muscle-flexing demonstration of prosecutorial discretion.
Unlike contempt of Congress citations, criminal referrals have no formal status in law or in Congress’s rules. Any citizen can make them. There are three good reasons why the committee would avoid making criminal referrals on Trump or anyone else. First, as Lofgren mentioned, such referrals from Congress have no legal status at DOJ. Most of such referrals from Congress, usually made by committee chairmen, have died on the department’s doorstep. Justice is very sensitive about being perceived as doing Congress’s political bidding, and prides itself on its independence and non-partisanship.
The second reason for not filing a criminal referral is a matter of optics. One of the main criticisms House Republicans level at the select…
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