On December 18, the House Select Committee on January 6 voted to refer former president and declared presidential candidate Donald Trump and a few of his associates to the Department of Justice for criminal prosecution. No House investigative committee has ever recommended the prosecution of a former president before.
A criminal referral certainly sounds ominous. But what is it really? And what impact does it have?
What Is a Criminal Referral?
Let’s start with what a criminal referral is. Remember that our federal government is comprised of three branches: the legislative branch (Congress), the judicial branch (the courts), and the executive branch (the president).
While the legislative and judicial branches have investigative powers, they cannot prosecute crimes. Only the executive branch can. So if either Congress or the courts believe that someone should be prosecuted for a crime, they have to “refer” the matter to the executive branch. Hence, “criminal referral.”
So this must be a big deal, right? Legally, it isn’t. Criminal referrals are nothing more than recommendations. They have the same legal force and effect as an inter-office memo. So don’t think you’ll see the former president standing in the dock anytime soon.
At least, not yet. The January 6 Committee issued a criminal referral for a reason.
What Are the Recommended Charges?
The committee concluded that Trump committed four federal crimes:
Obstruction of an official proceeding (18 U.S.C. § 1512(c))Conspiracy to defraud the United States (18 U.S.C. § 371)Conspiracy to make a false statement (18 U.S.C. § 371, 1001)Insurrection (18 U.S.C. 2383)
Of these four, insurrection is a particularly bold charge. The Justice Department hasn’t included an insurrection charge in any of the nearly 900 prosecutions related to January 6. However, it just so happens that if you’re convicted of insurrection, you’re barred from federal office, which would put a little hiccup in Trump’s presidential campaign.
So What’s the Point?
You may be wondering if a referral has no legal effect, why would the January 6 Committee go through the trouble? Is it only to score political points?
That’s certainly part of it. No doubt the referral will hurt Trump in the polls. But how much is hard to say. He hasn’t been doing himself any favors lately — dining with antisemites and selling NFTs (essentially digital trading cards) hasn’t increased his standing in the public eye.
Regardless of whether the president is ultimately indicted, the unprecedented recommendation by the House committee to prosecute the former president will follow Trump. Democrats hope it will end his political career.
Pressure on the Special Counsel and the Justice Department
And although the Justice Department could ignore the referral, that doesn’t mean it’s going to. In fact, the DOJ has been conducting its own investigation into Trump’s actions relating to January 6. Attorney General Merrick Garland appointed Jack Smith as a special counsel charged with determining whether the former president committed any crimes.
To say that the January 6 Committee gave the special counsel an investigatory head start is an understatement. In reaching its conclusions, the committee conducted 10 public hearings, interviewed more than 1,000 people, and reviewed literally millions of documents. We expect the committee to turn over most, if not all, of its work product to the special counsel, so he will not need to reinvent the proverbial wheel.
The referral may also influence the results of the special counsel’s investigation. In its final report, the January 6 Committee essentially gave the special counsel a road map to an indictment of the former president. The committee laid out its theory of the case and provided evidence supporting its conclusions. It’s all there. The special counsel may not follow it entirely, but it’s hard to believe that he would ignore it.
As far as Trump’s lawyers go, criminal referrals present another problem. They may face prosecution from the Justice Department, and the state bar authorities might decide they shouldn’t keep their law licenses.
Believe it or not, lawyers are not allowed to lie, especially in court proceedings. Trump’s lawyers filed complaints in states all across the country, making all sorts of unsupported allegations of election fraud. Trump has lost virtually every case, and some judges have actually punished his lawyers for filing baseless claims. The referrals could result in Trump’s lawyers losing their law licenses.
This Isn’t Over
The January 6 Committee has wrapped up its investigation and issued its recommendations. But Trump’s problems are far from over. The special counsel will take the time he needs to investigate his conduct. Whether the investigation yields an indictment, we will have to see.
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