Donald Trump is once again poised to make history. No former president has ever been the subject of a criminal referral from Congress, and that could change early next week.
The House Jan. 6 Committee is set to hold its final meeting on Monday, one in which it could vote on whether to refer Trump to the Department of Justice for criminal prosecution for his involvement in trying to overturn the results of the 2020 election and encouraging the violent attempt to stop the Jan. 6 certification of Joe Biden’s election win. The referral, and the documentation supporting it, would then likely be handed to Special Counsel Jack Smith, who Attorney General Merrick Garland appointed last month to take over criminal investigations involving Trump. It will be up to Smith to ultimately decide whether to bring charges.
The expected vote to recommend prosecution of Trump would be a climax to the committee’s 18-month investigation, which involved over 1,000 interviews, the gathering of over a million documents, and 10 public hearings. The committee is also finalizing a public report that could be released as soon as next week. The committee voted in October to subpoena Trump to testify, but Trump refused to appear.
The committee is also considering criminal referrals for people who allegedly helped Trump try to overturn the election results by creating fake slates of electors such as former Justice Department official Jeffrey Clark, Trump’s former White House chief of staff Mark Meadows, attorney John Eastman, and Rudy Giuliani, Trump’s former personal attorney.
The referrals would be largely symbolic, but experts say that symbolism—and the evidence behind it—can still carry a lot of weight.
“Symbols are hugely important,” says Debra Perlin, the policy director for Citizens for Responsibility and Ethics in Washington, who argues a criminal referral of Trump would “frame a discussion” around the deadly attack on the Capitol and the events that preceded it.
“It can help prevent and counteract misinformation and disinformation in the society that we thrive in,” Perlin says, “because you can point to something authoritative, coming from Congress, that says that this happened, that there needs to be accountability, and that says that criminal prosecution is the path that needs to be taken moving forward.”
If the Committee votes to send criminal referrals, it means “they figured that writing a report wasn’t enough,” says Timothy Naftali, a presidential historian at New York University and a former director of the Richard Nixon Presidential Library and Museum.
Donald Trump’s “the only president to have ever tried to overturn an election,” Naftali continues. “So, yea, this is a unique referral. It’s also a unique moment in our history.”
Other presidents have faced legal jeopardy from their actions while in office. But in most of those cases, the threat of prosecution did not follow them after they left office. In 1974, President Gerald Ford famously issued a pardon to his predecessor, Richard Nixon, clearing Nixon of any crimes that he might have committed against the United States as President.
The pardon came after both chambers of Congress had investigated Nixon’s involvement in widespread abuses of power stemming from a break-in at the Democratic National Committee’s offices in the Watergate complex by men working for his re-election campaign.
No congressional committee ever issued a criminal referral to the Department of Justice for Nixon. Rather, the reverse occurred, as Leon Jaworski, the special prosecutor tasked with investigating Nixon, sent Congress a “roadmap” laying out evidence of criminal violations Nixon was believed to have committed including bribery, perjury and obstruction of justice. Because Nixon was a sitting president, Jaworski initially believed it made more sense for Congress to move forward with impeachment proceedings, than trying to prosecute Nixon in a court of law. Facing impeachment in the House, cratering support from his fellow Republicans, and looming criminal charges from a grand jury, Nixon resigned from office before facing prosecution.
A criminal referral from Congress against Trump would send a strong message to the former President and his allies ahead of the next presidential election, says Naftali.
“The criminal referral of the cast of characters who tried to overturn our Constitution in 2020, those referrals are a warning, I think, to people around Donald Trump today: ‘Don’t do this again. Don’t try this again. There will be consequences,’” Naftali says.
When asked for a response to the potential criminal referrals, the Trump campaign replied by belittling the committee’s work. “The January 6th un-Select Committee held show trials by Never-Trump partisans who are a stain on this country’s history,” said Steven Cheung, a spokesman for Trump, in a statement. “This kangaroo court has been nothing more than a Hollywood executive’s vanity documentary project that insults Americans’ intelligence and makes a mockery of our democracy.”
The Democratic-led House already impeached Trump twice: once for trying to get Ukrainian President Volodymyr Zelensky to launch a politically motivated investigation into Joe Biden, and a second time for his role in encouraging the Jan. 6 attacks on the Capitol Building. After both impeachments, the Senate voted to acquit Trump.
“The Mount Rushmore of Election Denial Criminality”
Norm Eisen, a senior fellow in governance studies at The Brookings Institution, was counsel to the Democrat-led House Judiciary Committee during Trump’s first impeachment, and considers that impeachment report to have been similar to a criminal referral because it included a 30-page analysis of why Trump and those around him had broken the law during his July 2019 call to Zelensky.
Eisen believes the Jan. 6th committee would be on solid ground with a criminal referral of Trump, as they have helped uncover plenty of evidence of the former President’s alleged role in two main criminal acts: conspiracy to defraud the United States and conspiracy to use force to prevent an official proceeding.
The committee has shown that Trump played an active role in trying to drum up 11,780 votes that did not exist in support of him in Georgia. He also was working with others to create slates of fake electors to send to Congress.
And the committee brought to light a phone call in which Trump and Eastman pushed Republican National Committee Chairwoman Ronna McDaniel to support the effort to create fake electoral slates. Also, U.S. District Judge David Carter ruled in March that Trump “corruptly attempted to obstruct” the certification of Joe Biden’s electoral win on Jan. 6 and, in an order issued in October, said that emails from Eastman show that Trump was part of “a conspiracy to defraud the United States” with unsubstantiated claims of voter fraud.
Eisen says that there’s enough there for the committee to refer Trump for charges on a conspiracy to defraud the United States, under 18 U.S.C. 371 in the federal criminal code.
In addition, Eisen believes that Trump’s actions just ahead of the Capitol attack, in which he encouraged a crowd he knew was armed to go to the Capitol building to stop the certification of election results, may have violated 18. U.S.C. 1512, by being part of a conspiracy to use force to prevent an official proceeding.
Those who helped Trump allegedly violate the law could also face criminal referrals, Eisen says. “The Mount Rushmore of election denial criminality” is Trump, the “inside coup lawyer” Jeffrey Clark, the “outside coup lawyer John Eastman” and Meadows, “whose fingerprints are all over this,” says Eisen.
Perlin, a legal expert on the rule of law and separation of powers, says that the committee, in addition to voting on criminal referrals, should also make public all of the information it has collected, as it isn’t only of interest to prosecutors. “It will also help civil society and experts who are going to be picking up the baton, along with prosecutors, to ensure that our democracy is protected going forward and that there is accountability ensured for everybody who tried to undermine our democracy,” she says.
Together, the committee’s referrals and report are expected to offer a detailed description of how Trump and those around him tried to violate the Constitution and stay in office after losing the election. That alone has value as “a demonstration that our institutions still work,” Naftali says. “We live in such a divisive, noisy era and this would be a focused, clean explanation for each one of these referred individuals, reasons why Congress felt they threatened our Constitution, and I think that’s healthy.”