Justice Department doesn't need a House referral to charge Trump — and might not want one anyway, legal experts say

Donald Trump
A referral from the House January 6 panel could undermine the Justice Department's consideration of charges against Donald Trump.Seth Herald/Getty Images
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  • House January 6 investigators are still mulling whether to refer Donald Trump for criminal prosecution.

  • Legal experts say a referral is unnecessary for DOJ and may only complicate its considerations.

  • The recent House January 6 hearings effectively served as a referral, former DOJ officials said.

Fresh off a primetime inspection of Donald Trump's inaction on January 6, 2021, members of the House committee investigating the Capitol attack made the rounds on television and relayed their key takeaway: The former president, they all agreed, engaged in gross misconduct with his efforts to overturn the 2020 election.

But in an appearance on CNN, Rep. Liz Cheney said the House January 6 committee had yet to resolve a rare internal spat that spilled into public view last month over whether to make a criminal referral, formally recommending that the Justice Department prosecute the former president.

"We've not decided yet, as a committee, whether we're going to make criminal referrals, but that's absolutely something we're looking at," said Cheney, the House committee's Republican vice chair. "And there's no question that we've seen very serious misconduct and, certainly, supreme dereliction of duty."

The referral question has loomed over the committee through eight public hearings that presented damning evidence against the former president. But for the Justice Department, such a referral is unnecessary to prosecute Trump — and could undermine considerations for bringing charges against the former president, legal experts told Insider.

"The Department of Justice is going to make its own decision," said Neil Eggleston, a former Obama White House counsel who years earlier, during the Reagan administration, served as deputy chief counsel for the House investigation into the Iran-Contra scandal. "The Department of Justice doesn't really care if Congress thinks there should be criminal prosecution, particularly in something this high-profile."

In the face of pressure to more aggressively pursue Trump, Attorney General Merrick Garland has stressed repeatedly that the Justice Department will follow the "facts and the law" and that "no one is above the law."

"Maybe I'll say that again, no person is above the law in this country — I can't say it more clearly than that," Garland said Wednesday.

If the Justice Department concludes that Trump broke the law and that it can bring a successful prosecution, Garland would need to decide whether it is in the country's interest to charge not just a former president but one who is weighing another run for the White House. Trump has already called for supporters to stage protests in connection with investigations into him, and any charges would likely be met with unrest and even violence requiring stepped-up security at government buildings.

A criminal referral from the House January 6 committee would certainly ratchet up the pressure on the Justice Department to prosecute Trump. Asked by NBC News' Lester Holt about whether he would welcome a referral from the House committee, Garland said "that's totally up to the committee."

"We will have the evidence that the committee has presented and whatever evidence it gives us. I don't think that the nature of how they style, the manner in which information is provided, is of particular significance from any legal point of view," he said, in an interview airing Tuesday at 6:30 p.m. "That's not to downgrade it or to or disparage it. It's just that that's not what, that's not the issue here. We have our own investigation, pursuing through the principles of prosecution."

But Garland, who has made a priority of extracting the Justice Department from the politicization of the Trump era, a criminal referral would further complicate those considerations and likely fuel Republican claims of a partisan motive behind any such prosecution.

"It may make it less palatable for the department to initiate a prosecution. It may appear that the department is doing the work of the congressional committee," said Ronald Weich, dean of the University of Baltimore School of Law, who served as the Justice Department's chief liaison to Congress during the Obama administration.

While the Justice Department does not require a referral to prosecute Trump, it did need one to bring contempt of Congress charges against Steve Bannon, who was convicted at trial last week. When the House referred Bannon for prosecution in October, it was "speaking as the victim" and uniquely positioned under federal law to recommend the specific charge of contempt of Congress, Weich said.

Another Trump White House advisor, Peter Navarro, was later charged with contempt of Congress following a House referral. Navarro is set to stand trial in November.

United States Attorney General Merrick GarlandREUTERS/Evelyn Hockstein/File Photo

'The evidence speaks for itself'

Former prosecutors noted that the Justice Department acted without a congressional referral in 2019 when it charged another prominent Trump ally, Roger Stone, with obstructing the House intelligence committee's investigation into Russian interference in the 2016 election. (Stone was found guilty and sentenced to more than three years in prison. But Trump commuted the sentence just days before Stone was set to report to prison and then pardoned him about two weeks before the January 6 insurrection at the US Capitol.)

Jonathan Kravis, who served as a lead prosecutor on Stone's case, told Insider that the Justice Department similarly would not require a referral from the House to bring the "most likely charge on the table" against Trump: obstruction of an official proceeding.

"The hearings have been enormously effective," said Kravis, who resigned from the Justice Department in early 2020 after then-Attorney General William Barr intervened in Stone's case to overrule career prosecutors and recommend a lower sentence for the Trump ally.

But, Kravis added, if the House voted to refer Trump for prosecution "and that vote broke down largely along party lines, that could deepen the public perception that what's going on here is really more like partisan politics and less like nonpartisan investigation work."

A referral against Trump, drawn from the committee's parallel inquiry into efforts to overturn the election, would not only be unnecessary but potentially "counterproductive for those who believe the department should prosecute," Weich said.

"In this instance, it may be better to let the evidence speak for itself and not have the formal referral, because the formal referral is saying to the department: 'We members of Congress believe there should be a prosecution.' And that is the very appearance the attorney general is seeking to avoid," Weich said.

"The evidence speaks for itself," he added.

Indeed, former Justice Department officials said the House January 6 committee has effectively referred Trump for prosecution already with a series of eight public hearings, in which the panel presented damning evidence linking the former president to the violence of January 6.  The hearings have highlighted Trump's desperate attempts to retain power, even after cabinet officials and other top advisors said his claims of electoral fraud were baseless.

From as early as mid-December, months before the recent string of public hearings, Cheney described Trump's efforts in criminal terms, employing language from a statute making it illegal to obstruct a congressional proceeding. More recently, Cheney and other House January 6 committee members have pointed to an April court ruling in which a federal judge found that Trump likely committed felonies — including obstruction of an official proceeding and conspiracy to defraud the United States — with John Eastman, a lawyer who advised him on how to overturn the 2020 election.

In the decision, Judge David Carter called the scheme a "coup in search of a legal theory."

Trump and his allies, for their part, have criticized the bipartisan House panel as a "one-sided witch hunt" and continued to spread false claims of widespread voter fraud.

Adam Kinzinger
Rep. Adam Kinzinger (R-IL).Alex Wong/Getty Images

Additional moves

Against the backdrop of Carter's ruling and the House January 6 investigation — along with a fast-moving inquiry by local prosecutors in Atlanta into Trump's efforts to overturn the 2020 election results in Georgia — Garland has increasingly faced questions about the lack of public steps to hold Trump and his allies accountable a year and a half after the attempt to prevent the peaceful transfer of power.

Lawmakers have raised doubts about the aggressiveness of the criminal investigation even as the House January 6 panel has resisted the Justice Department's requests for transcripts from all of the committee's interviews. In a letter to the committee last month, top Justice Department officials said the panel's "failure" to provide access to those records was complicating criminal cases.

During an appearance Sunday on ABC, Rep. Adam Kinzinger said of the Justice Department, "I certainly hope they're moving forward."

"I certainly think there's evidence of crimes, and I think it goes all the way up to Donald Trump," he said.

But Kinzinger, a Republican on the House January 6 panel, conceded he was seeing a "significant amount" of additional movement from the Justice Department.

In recent months, the Justice Department has issued subpoenas as part of a criminal investigation into a plan to create slates of so-called fake electors for Trump. And on the same day last month, the FBI seized Eastman's cell phone, and federal investigators searched the home of Jeffrey Clark, a former Justice Department official who supported Trump's efforts to overturn the 2020 election.

But those steps have not quieted the questions about Garland's approach to an inquiry he described Wednesday as the "most wide-ranging" and "important" in the history of the Justice Department.

"There is a lot of speculation about what the Justice Department is doing, what's it not doing, what our theories are and what our theories aren't, and there will continue to be that speculation," Garland said at a briefing with reporters Wednesday. "That's because a central tenet of the way in which the Justice Department investigates and a central tenet of the rule of law is that we do not do our investigations in public."

Two days later, a federal grand jury in Washington, DC, heard testimony from former Vice President Mike Pence's chief of staff, Marc Short, as part of the investigation into the January 6 attack and Trump's efforts to overturn the election.

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