But practically, it is hard to envision that a criminal referral would matter much one way or the other.
For one thing, Congress already provided the functional equivalent of a criminal referral last year, when the House impeached Trump for “incitement of insurrection” and a bipartisan majority coalition voted to convict him in the Senate. The idea that it would be a criminal referral by a subset of largely the same members of Congress who impeached Trump that would irretrievably politicize any prosecution is dubious. Any prosecution of Trump under the current administration would necessarily have strong and unavoidable political overtones, with or without a referral, and Trump would surely claim that it is a political witch hunt — just as he already has every other time he has faced a serious investigation of his conduct. A criminal referral from Congress would be a marginal contribution to this line of defense, and there is no reason to believe it would be particularly persuasive to any fair-minded judge or juror.
Second, there is probably no way to confidently predict what effect, if any, a referral would have on the Justice Department’s decision-making. It is already unclear whether the department’s investigation into potential crimes committed on and in the run-up to Jan. 6 has been as focused as it should be on Trump and his inner circle, in part because Garland has been unwilling to provide the sort of clarity that many would like.
A criminal investigation focused on the highest levels of the Trump White House and campaign operations was warranted long before the select committee began its investigation last July, going all the way back to the outrageous call from Trump to Georgia Secretary of State Brad Raffensperger. Even more reason to initiate a federal criminal investigation was provided by the events of Jan. 6 itself, particularly after the House’s impeachment. Although they achieved less than the Senate supermajority necessary for a conviction and an impeachment is an inherently political process, the House impeachment managers last year effectively sought to prove that Trump had committed a crime, and the fact they appear to have convinced so many of their colleagues should have been enough to merit serious investigation by the Justice Department — at least after Garland was confirmed.
Another congressional fact-finding mission was never a necessary precursor to a criminal investigation.
Now though, the committee’s principal focus should ultimately be on how to present its investigative findings to the public, irrespective of a referral. The committee may indeed have a good deal of information that the Justice Department does not — depending, again, on the scope and intensity of the department’s work, which even the committee and President Joe Biden do not seem to know. The committee should lay out that information straightforwardly and professionally, just as it did recently in a lawsuit concerning Trump’s legal adviser John Eastman, who tried to withhold emails from the committee.
Last month, the committee argued in a court filing that there was sufficient evidence Trump had committed criminal conduct, along with Eastman, to warrant the disclosure of documents in Eastman’s possession that might otherwise have been protected by legal privileges. The presiding judge agreed with that assessment, ultimately ruling it was “more likely than not” based on the information presented to him — which included evidence that the committee had gathered but not previously disclosed — that Trump attempted to obstruct an official proceeding and that he and Eastman had unlawfully conspired to obstruct the certification of Biden’s election.
The committee cannot compel the Justice Department to investigate or prosecute Trump. But it can lay out all of the evidence it’s gathered over the past eight months, and it should aim to do so in a manner that is accessible to the general public so the country has a clear and comprehensive account (unlike other recent and largely unreadable government publications like the Mueller report). That would be a considerable public service and a welcome contribution to the historical record that may also be useful to any potential future prosecutors. Whether the committee’s findings are accompanied by a criminal referral is beside the point.