The Jan. 6 Select Committee has signaled it intends to explore potential criminal wrongdoing by former President Trump, marking a significant escalation for the investigation that could put pressure on the Biden administration.
The panel has said it could refer Trump to the Justice Department for prosecution if it finds damning evidence, in what would be seen as an open invitation to Attorney General Merrick Garland to be more aggressive toward the former president than he has been in his tenure thus far.
Rep. Liz Cheney (R-Wyo.), the select committee’s vice chair, gave the first indication at a hearing earlier this month that the panel is examining whether Trump committed a crime.
Quoting the statutory text for a felony obstruction offense, Cheney said that a key question for the select committee investigation is, “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes?”
Obstruction of an official proceeding is a charge that carries a maximum possible sentence of 20 years in prison. Federal prosecutors have wielded it against hundreds of rioters accused of participating in the attack on the Capitol.
But bringing the same charge against a president who never set foot in the building would require far more complex legal and political calculations.
“The challenge is … this undefined territory of the circumstances under which an executive official crosses the line between exercising executive power to actual obstruction of justice,” said Daniel Hemel, a University of Chicago law professor.
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Jeff Robbins, a former federal prosecutor who has also served as an investigative counsel on two Senate committees, said that in order for such a referral to be persuasive to federal prosecutors, it must be backed up by solid evidence that would not only support bringing charges but show evidence of guilt beyond a reasonable doubt.
“A committee that wants to make a persuasive referral will be as specific and as detailed and as evidence-based as possible, delivering something as close to a basis for an indictment on a silver platter as can be provided,” he said.
Robbins said that any referral involving a former president would be held to an even higher standard, but added that the committee’s credibility would support its findings in the eyes of the Justice Department.
“There will be an inclination to review very, very, very carefully any criminal referral involving Donald Trump, to kick the tires again and again and again,” Robbins said. “But on the other hand, they’ll treat a criminal referral by this committee — given its leadership and the quality of the lawyers — as a serious document if that’s what blows its way.”
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Jan. 6 panel signals interest in whether Trump committed crime https://t.co/p4uVy9fMHH pic.twitter.com/rkO1UJ7ZgO
— The Hill (@thehill) December 26, 2021
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