Members of the House select committee investigating the January 6, 2021, attack on the US Capitol are in wide agreement that former President Donald Trump committed a crime when he pushed a conspiracy to prevent the peaceful transfer of power. But they are split over what to do about it, including whether to make a criminal referral of Trump to the Justice Department, four sources connected to the panel tell CNN.
The internal debate, which has heated up in recent weeks, spilled into the open on Monday night when the committee’s chairman, Democratic Rep. Bennie Thompson of Mississippi, repeatedly told a group of reporters at the Capitol that the committee would not be issuing any criminal referrals.
“No, that’s not our job,” Thompson said when pressed.
Thompson’s off-the-cuff remarks sparked an immediate response from several of his fellow committee members who rushed to knock down the notion they would not be pursuing criminal charges.
“The January 6th Select Committee has not issued a conclusion regarding potential criminal referrals. We will announce a decision on that at an appropriate time,” GOP Rep. Liz Cheney of Wyoming, the vice chair of the committee, tweeted 15 minutes after Thompson’s comments.
Sources tell CNN Cheney is a leading voice among those members who believe the committee should issue a criminal referral.
Committee member Elaine Luria, a Virginia Democrat, took it one step further, tweeting Monday night that the committee has yet to vote on whether it will recommend criminal referrals but made clear she believes “if criminal activity occurred, it is our responsibility to report that activity to the DOJ.”
In a video released Tuesday, Cheney said that Trump likely violated two criminal statues in his efforts to pressure then-Vice President Mike Pence to refuse to count lawful electoral votes.
The episode Monday night illustrates that after nearly a year of work, the committee remains divided over what is likely the most pressing question it faces: whether to seek criminal charges against Trump based on the evidence it has uncovered.
The question has led to a vigorous, at times contentious, debate among committee members, sources say. The committee lacks prosecutorial powers and has faced persistent criticism from Republicans who argue it has no legal mandate.
Still, the idea of a criminal referral of Trump, even if entirely symbolic in nature, has hung like a shadow over the panel since it was first formed.
Divided over political risk
Members remain divided over the political risk that a formal criminal referral to the Justice Department could present. A criminal referral is not an official responsibility of the panel. And the DOJ would be under no legal obligation to act on the committee’s request, though it could force Attorney General Merrick Garland and his prosecutors into a difficult public position.
At the same time, if the committee opts not to make a referral, it would likely miss its best chance of making a forceful statement that it believes Trump committed a crime. Choosing not to make a referral would also mean abdicating one of the committee’s only levers of political pressure at its disposal.
Thompson, who sources say got ahead of the ongoing internal discussions, conceded Tuesday that the committee has not made a final, formal decision on whether to issue a criminal referral, but that certain members have brought it up.
“We’ve not actually discussed criminal referrals as a committee. Individuals have talked about it, but our primary mission is to get all of the facts and circumstances that brought about January 6, and that’s what we’re doing” he said, appearing to walk back his comments from the day before.
Also on Tuesday, Democratic Rep. Stephanie Murphy of Florida appeared to back up Thompson, telling CNN she did not believe a criminal referral was necessary to motivate DOJ to act.
“I’m not sure that it’s necessary, because they’re already doing their job in evidence by the hundreds of people they’ve prosecuted,” Murphy said, pointing out that DOJ is “pressing criminal charges on people involved with January 6, and we didn’t ask them to do any of those things.”
Delicate dance with Justice Department
The committee’s decision is further complicated by its lack of visibility into what the Justice Department may or may not choose to investigate.
For months, committee members have been vocal in their desire for Garland to act on the evidence they have uncovered, including the four criminal referrals they sent to the department. When the Justice Department announced it would not be pursuing charges against former White House chief of Staff Mark Meadows and Trump aide Dan Scavino, committee members voiced their disappointment publicly.
The Justice Department has moved forward with charges against two former Trump advisers, Stephen K. Bannon and Peter Navarro.
The committee has also made it clear, however, they expect the department to act on its own accord, and that the facts speak for themselves.
“I think that the Justice Department needs to investigate any credible allegation of criminal activity, whether it’s by a former President or by anyone else,” committee member Adam Schiff, a California Democrat, told CNN on Monday, not long after Thompson’s comments that night.
On Tuesday, Schiff acknowledged members of the committee have discussed the issue of a criminal referral amongst themselves but he also sought to downplay any notion of an internal disagreement over the matter.
“There’s been much ado about nothing in terms of disagreements within the committee,” said Schiff. “We really haven’t had a chance to talk it through. We haven’t had that discussion yet but we will in proper time.”
One source familiar with the panel’s discussions told CNN the panel believes it should not have to make a formal referral because DOJ should just investigate based on the merit of what’s already come out publicly, both during the hearings and before.
While there are signs that Garland and his deputies have expanded their probe into areas that go beyond the rioters who breached the Capitol, committee members are concerned that he has not been aggressive enough in his pursuit of Trump’s orbit, including the former President himself.
House Speaker Nancy Pelosi did not weigh into whether the committee should issue a criminal referral on Tuesday, telling CNN, “I think they should follow the truth wherever it takes.”