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Could Jan. 6 Panel Referral to DOJ on Trump Harm Prosecution Odds?

Should the House Jan. 6 committee ask the Justice Department to pursue a criminal case against Donald Trump? It’s a question with political heft but no practical effect. Some panel members are increasingly skeptical. The Justice Department is aware of the volume of evidence pointing to violations of the law by Trump. That evidence was underscored emphatically when a federal judge ruled the former president “more likely than not” committed felonies to try to overturn the 2020 election. The committee could send a “criminal referral” to Attorney General Merrick Garland outlining its recommendations, but it would have no substantive value, reports Politico.

“A referral doesn’t mean anything,” said Rep. Zoe Lofgren (D-CA), a committee member. “It has no legal weight whatsoever, and I’m pretty sure the Department of Justice has read [the courrt] opinion, so they don’t need us to tell them that it exists.” Lawmakers and congressional committees have long issued criminal referrals that the Justice Department rarely acts on. A referral against a former president would be unprecedented, bound to force tough questions for the Biden administration. Jan. 6 committee Chair Bennie Thompson (D-MS.) has floated such a move. Federal Judge David Carter declared Trump’s effort to overturn the election a “coup in search of a legal theory.” “Whether we make a referral or not, I think that as the judge pointed out, there is credible evidence that the former President is engaged in criminal conduct,” said Rep. Adam Schiff (D-CA), another member of the panel. “And I don’t think that can be ignored by the Justice Department.” Some legal experts worry that Congress issuing a criminal referral of Trump could jeopardize any meritorious DOJ investigation by infusing it with the perception of politics. “A formal criminal referral from Congress in this situation could backfire. The Justice Department’s charging decisions should not be influenced by political pressure, and that’s how this might look,” said Ronald Weich, a University of Baltimore law professor and former assistant attorney general in the Obama Justice Department.

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