The January 6th Committee’s plan to refer Donald Trump for criminal prosecution

| 9:09 am EST January 9, 2022
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Last month, in a leak that could only have come from the January 6th Committee itself, the New York Times reported that the committee was looking at referring Donald Trump to the DOJ for criminal prosecution on crimes including obstruction of Congress and wire fraud. Now, in a new leak that could also have only come from the committee itself, the Guardian is reporting that the committee is looking at also referring Trump for a criminal conspiracy to overthrow the election.

With these leaks, the committee is giving away a lot about what it’s currently sitting on, and how it intends to play this. First, if you’re a congressional committee, you don’t leak you’re even “considering” a criminal referral against the former President of the United States unless you already have more than enough evidence to make the criminal referral legitimate in the eyes of the law and in the court of public opinion.

Second, by leaking that different kinds of charges are being considered, the committee is laying the groundwork for demonstrating that Trump committed a broad swath of crimes in relation to January 6th. It’s not simply a question of whether Trump, recklessly or intentionally, incited the Capitol attack. It’s that the moment in question was part of an ongoing crime spree.

But the most intriguing part of these leaks may be the fact that the January 6th Committee obviously knows the Department of Justice is paying attention. While the DOJ has been very quiet about what if any criminal avenues it’s pursuing against Donald Trump, the committee is now giving the DOJ a very blatant heads up about the kinds of criminal referrals it could end up receiving against Trump.

This is notable because even if the DOJ has been pursuing January 6th and/or Donald Trump from very different directions, it’ll have to take immediate notice if Congress hands it a comprehensive criminal case against Trump from these specific directions. Now that the DOJ is aware that it could soon be receiving a criminal referral against Trump on the kinds of charges that the committee is leaking, the DOJ has time to steer its own efforts in those general directions. This doesn’t guarantee the DOJ will bring charges against Trump. But if the committee hands over a complete criminal case that’s likely to win at trial, the DOJ would have a hard time – from a legal standpoint and a perception standpoint – not bringing the charges.