Opinion | There’s no longer any need for the Jan. 6 committee to issue a criminal referral

Opinion | There’s no longer any need for the Jan. 6 committee to issue a criminal referral

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Among the rare disconnects between members of the House select committee investigating the Jan. 6 insurrection is their public disagreement over whether they should make a “criminal referral” based on their investigation.

Rep. Bennie G. Thompson (D-Miss.), the committee’s chairman, told reporters on Monday, “No, you know, we’re going to tell the facts. If the Department of Justice looks at it, and assume that there’s something that needs further review, I’m sure they’ll do it.” Asked again about referral, he said, “No, that’s not our job. Our job is to look at the facts and circumstances around January 6, what caused it and make recommendations after that.”

Vice Chairwoman Liz Cheney (R-Wyo.), by contrast, tweeted there has been no decision as to whether a referral will be made.

Democrats have started to weigh in urging a referral. Meanwhile, news organizations are eagerly covering the “to refer or not?” question as a classic D.C. process story, with a touch of “Democrats in disarray!”

Several points deserve underscoring. For starters, a “referral” from the committee would have no legal significance. In the past, such actions have been used when the Justice Department had not yet begun an investigation. But there is no requirement for the Justice Department to receive a missive from Congress to investigate the crime of the century. This is especially true since there is already a nationwide investigation underway.

A video from the Jan. 6 hearing on June 9 used multiple sources, including security and body camera footage, to walk viewers through the attack on the Capitol. (Video: The Washington Post)

Attorney General Merrick Garland has repeatedly said he will follow the facts and will not rule out prosecuting anyone. In case anyone imagined that Justice Department lawyers were not following the proceedings, Garland declared on Monday, “I will be watching all the hearings, although I may not be able to watch all of it live.” He continued, “But I will be sure that I am watching all of it. And I can assure you that the January 6 prosecutors are watching all of the hearings as well.”

That should have been the end of the “referral” hooey. He already knows the committee thinks there was illegality. Members have said it publicly at the hearing and, no doubt, will repeat it in their final written report. By the end of the hearings and the release of the report (along with the depositions), Garland will have the lion’s share of information that the committee has collected.

After the hearings, Garland and the committee can certainly negotiate transfer of any additional material. It would therefore be appropriate, perhaps beneficial, for the committee in its final report to simply announce it will make documents available to the Justice Department.

For a time, I worried a referral would be necessary to encourage (if not lean on) Garland to act. That is no longer necessary, and not because he has thoroughly convinced me that he will prosecute the president if the facts warrant. The committee’s own successful hearings have already applied all the pressure they could possibly hope.

By making such a compelling case (which has been embraced by virtually all serious news organizations), the committee has set the stage for prosecution, putting the onus on Garland to explain himself if he decides not to indict the former president. The burden, if you will, has shifted to the Justice Department to justify not prosecuting Trump and his inner circle, if that is Garland’s decision.

The committee can take the opening Garland gave it to announce it is glad he is following along and knows our view on Trump’s criminal liability. That should end the committee’s fussing and the annoying media chatter. It would also enable Garland to say later: “Congress didn’t force this on me. I followed the facts, just as I said I would.”

And when Garland does make a decision, he will be hard-pressed to justify allowing Trump to avoid accountability. Anyone following the hearings would readily agree.

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