The House Jan. 6 committee is poised to make a criminal referral against former President Donald Trump on Monday, but it may not be a slam-dunk win for the panel.
A criminal referral against a former president would be unprecedented and likely will ignite an already volatile political environment.
“It is still not clear what such criminal referrals would be based on. The past referrals have dealt with relatively cut-and-dry issues of contempt as with [Stephen K.] Bannon. The more serious possible offenses would come with far more difficult constitutional questions.” said Jonathan Turley, a law professor at George Washington University.
Mr. Turley added that any charge indicating that Mr. Trump incited the riot would result in a likely challenge if it’s based on free-speech rights.
The committee could propose charges against Mr. Trump of conspiracy to defraud the U.S. or obstruction of an official proceeding of Congress. The penalty for the conspiracy charge is up to 10 years in prison. The obstruction charge carries a potential prison term of not more than five years or not more than eight years if the offense involves domestic or international terrorism.
In addition to announcing its referrals, the committee is also expected to release its final report on its findings over Mr. Trump’s attempts to overthrow the 2020 election and incite the riot.
Others who could face criminal referrals are former White House chief of staff Mark Meadows, and attorneys who guided Mr. Trump in his efforts to overturn the election.
Rudy Giuliani, John Eastman and Justice Department Attorney Jeffrey Clark advise the former president on his repeated claims that the election was stolen from him, which ruled the attack on the Capitol on Jan. 6, 2021. Each of them also could be subject to a criminal referral by the committee.
But, given Mr. Trump’s existing support base and 2024 candidacy, a referral against the former president would put Attorney General Merrick Garland in a tough spot.
“My guess is he would have no hesitation going after somebody like Mark Meadows but I don’t know whether Garland would go after Trump and go to prosecute him,” said Democratic strategist Brad Bannon. “There’s no legal precedent for going after a former president. I think there would be a concern for the Department of Justice and in the White House that a Trump indictment would just blow the lid off American politics.”
A Trump indictment could even backfire on Democrats.
“It could actually help Trump with Republicans. He’ll become a martyr and he needs a boost,” Mr. Bannon said.
The Justice Department also will face new pressures when Republicans take control of the House in January. A GOP majority could rescind or denounce a referral by the committee, which is expected to be dismantled in the next Congress.
“The DOJ would be asked to prosecute on behalf of a house that may no longer claim that it was a victim,” Mr. Turley said. “The timing can undermine the case by making this look like a last-minute muscle play by a committee lacking a single GOP selected member.”
Rep. Liz Cheney, a Wyoming Republican who lost reelection this year in part because of her fierce anti-Trump stance, helped write the recommendations for the referrals. Others drafting the referrals were Reps. Zoe Lofgren and Adam Schiff, both California Democrats, and Rep. Jamie Raskin, Maryland Democrat.
The four committee members, all attorneys, presented their recommendations to a larger group for consideration.