Yet the committee is facing fundamental challenges. First, it has no powers to bring criminal charges on its own. Second, it is almost certainly living on borrowed time. Pro-Trump Republicans have vowed to close it down if the GOP wins back the House in November’s elections. And US public opinion is so polarized about Trump that even a shocking report detailing unfettered totalitarianism by the ex-President — and possible 2024 Republican nominee — seems unlikely to shift the political needle much. And any attempts to trigger changes to the law to prevent repeats of the insurrection will come up against that ticking political clock, with Senate Republicans able to wield the filibuster to block measures they oppose. But if the panel were to successfully convince the Justice Department that a prosecution of Trump or acolytes was justified, its work could live on and force Trump to face elusive accountability even if a new Republican House majority ends its mandate.
Still, on its own, the committee has limited capacity to enforce the accountability that Trump has long skipped past in politics, business and life.
The move came as the committee tries to force Eastman to hand over emails he argues are protected by attorney-client privilege. Trump and Eastman have not been charged, and the court filing does not mean they are in immediate legal jeopardy. The conspiracy argument is an attempt to vitiate Eastman’s attorney-client privilege defense. But it is being interpreted by legal observers as a clear signal of the January 6 panel’s ultimate intent and, potentially, as a way to increase pressure on Garland to bring charges.
“The Select Committee, I think, is saying here implicitly, they are going to seek a criminal referral,” former federal prosecutor and CNN legal analyst Jennifer Rodgers told CNN’s Kate Bolduan Thursday.
Democratic Rep. Adam Schiff of California, who sits on the panel, told CNN on Thursday that he didn’t want to get ahead of whether or not it should make a referral.
“We’re obviously not a criminal, prosecutorial body. That’ll be up to the Justice Department,” he said. “But I think there were multiple lines of effort to overturn the election. Some of those lines of effort appear to violate federal law, and we don’t think that any communications in the service of that fraud and that obstruction should be privileged in any way.”
Wednesday’s filing was also interesting because it included evidence — in the form of emails between then-Vice President Mike Pence’s lawyer Greg Jacob and Eastman — that appear to show that people inside the White House knew the scheme to overturn the election in the Electoral College was wrong. Such evidence could be critical in any criminal case against the ex-President or other officials in his White House.
Mounting pressure on Garland
A House referral would deposit a boiling political hot potato in Garland’s lap. The attorney general, at the direction of Biden, has sought to restore the wall between the Justice Department and partisan politics that was torn down by Trump as he sought to use the agency much like a personal law firm.
The claims in the new court filing only step up the heat on him.
“From my perspective as a former prosecutor with the Department of Justice, the department shouldn’t be waiting on our committee for any referral,” Schiff said. “If the Justice Department believes there is evidence of crime, involving anyone, including the former President, they should be investigating.”
“The Justice Department has no requirement to wait for Congress, historically doesn’t wait for Congress, and I don’t think should wait for Congress here,” he added. The California lawmaker had previously raised concerns that the department was not taking the investigation into January 6 seriously, and he said Thursday that concern remains.
Garland would have to consider whether a case outlined by the House committee would have a good chance of success in a court of law. Ultimately, the question of whether it is in the national interest to prosecute a former President with future political ambitions would be raised given the far reaching implications of such a case. But if presidents can get away with trying to overturn an election, as publicly available evidence of Trump’s statements and actions suggests is what happened, it would have implications for US democracy in the long term.
The Justice Department has already received two criminal contempt referrals from the committee and the full House — targeting Trump’s former political guru, Steve Bannon, and White House chief of staff Mark Meadows, both regarding a refusal to testify to the panel. The department initiated a prosecution against Bannon, who’s facing trial this summer. So far, it has not taken action on the case of Meadows, who, as a serving official at the time of the insurrection, may have better claims that his conversations with Trump are protected by executive privilege.
CNN legal analyst Elie Honig suggested on Thursday that the committee’s move was a gambit specifically designed to increase the heat on Garland as the most critical months of the investigation begin to unfold.
“The DOJ has prosecuted over 700 people, but all people who were physically present at the Capitol,” Honig said on CNN’s “Newsroom.”
“I think what the committee is trying to do here is amp up the pressure on Merrick Garland, (saying) we want you to start looking at the bosses, we want you to start looking at the people who plotted this in advance.”
Extending the committee’s legacy
While it’s one thing for the committee to make a conspiracy argument in a case relating to attorney-client privilege, it’s another thing to produce compelling evidence that would stand up in a straight prosecution. And given the stakes, prestige and identify of the potential accused — a ex-President of the United States — the burden of proof would seem to be even more elevated.
A committee decision to make a criminal referral of the former President to the Justice Department would be certain to trigger an extraordinary political uproar. It would unfold right in the middle of the midterm campaign, ensuring that for a second election in a row, Trump’s lies about voter fraud would take center stage. The ex-President would be sure to claim the referral was just the latest attempt by the political establishment to persecute him and his followers — a charge right-wing propagandists on conservative media would embrace following their efforts to whitewash the history of the Capitol insurrection.
Such a referral could also further mobilize Trump supporters to get to the polls in 2022 in pursuit of a GOP-controlled Congress. It could also motivate Democrats alarmed by fresh evidence of the ex-President’s lawlessness as he contemplates another presidential campaign in 2024. And a reminder of the extreme efforts to which the ex-President resorted to cling to power could renew his toxic impact on suburban voters, who were alienated by his radicalism in elections in 2018 and 2020.
But a criminal referral against Trump would be one way for the committee to extend an active legacy even if it is wiped out in a Republican landslide in November’s midterms. A final report into that day of infamy, when the Trump-incited mob stormed the Capitol to try to stop Congress ratifying Joe Biden’s victory, that gets big headlines and drops in the last few months of the 2022 campaign could impact public opinion, raise pressure for Congress to enact reforms and be a milestone in history.
Democratic Rep. Elaine Luria of Virginia, a member of the panel, teased on Thursday that the information revealed in the filing is only a fraction of what the committee has.
“The information that was shared in that filing is just a tiny piece of information that the committee has been able to gather over the months of work,” she said.
Still, it’s just as likely that the fruits of the investigation will fade over time.
A potential criminal prosecution, however, could represent a significant return for the two GOP members of the panel, Reps. Liz Cheney of Wyoming and Adam Kinzinger of Illinois, who have put their political careers on the line to oppose Trump. Cheney is facing a Trump-backed primary challenger and lost her House leadership post for telling the truth about the ex-President’s lies. Kinzinger, who has been ostracized by his colleagues, is not running for reelection in November.
This week’s court filing is not the first time that the committee has hinted at a potential criminal referral of Trump. Cheney told CNN in January that his attempt to obstruct the certification of a fair election was certainly a dereliction of duty and that the committee was looking at whether it constitutes a crime.
Annie Grayer and Ryan Nobles contributed to this report.