Members of a House select committee, nearing the end of an investigation into the Jan. 6, 2021, Capitol attack, are planning how the Justice Department can further the sprawling congressional probe they say turned up evidence of crimes.
The panel put a high-profile flourish on its investigation with a subpoena for Donald Trump on Thursday. But committee members also highlighted how they believe they have enough evidence to make criminal referrals to DOJ, along with its planned report proposing legislative changes to prevent another attack.
“Our committee may ultimately decide to make a series of criminal referrals to the Department of Justice, but we recognize that our role is not to make decisions regarding prosecution,” Rep. Liz Cheney, R-Wyo., said during the hearing.
Cheney also acknowledged that the limits the panel has faced in its probe could be surpassed by the Justice Department. “At some point the Department of Justice may well unearth facts that these and other witnesses are currently concealing,” she said.
Another committee member, Rep. Jamie Raskin, D-Md., later said he and a smaller committee are working on procedural details about how the Jan. 6 panel would make criminal referrals to the Justice Department.
“There are not explicit statutory mechanisms for doing that. And so we want to proceed with some care and some thoughtfulness about how we do it,” Raskin, a former constitutional law professor, said Thursday on CNN.
There is a statutory mechanism for referring someone for contempt of Congress, which the Jan. 6 panel and House Democrats did for several witnesses who did not fully cooperate with the investigation.
“But if Congress comes into possession of other evidence of crimes being committed, we have to figure out the right way of turning that over and making that referral happen,” Raskin said.
The Jan. 6 panel, in a filing in litigation in California about obtaining information from lawyer John Eastman, already said members thought that federal crimes had been committed.
And Raskin on Thursday specifically mentioned two crimes: conspiracy to interfere with a federal proceeding and seditious conspiracy.
The joint session of Congress on Jan. 6 to count Electoral College votes and to constitute the peaceful transfer of power is a federal proceeding, Raskin told CNN.
And a lot of people who attacked the Capitol that day are being charged with or have already pleaded guilty to seditious conspiracy, which is “to overthrow the government of the United States or its laws and to put down the government of the United States.”
“And so all of these things are very much in play,” Raskin said.
Chairman Bennie Thompson, D-Miss., told reporters after Thursday’s hearing that the panel had not yet finalized the scope of the planned subpoena for Trump or when it would ask for compliance.
Trump issued a lengthy response letter online after Thursday’s hearing that did not address the subpoena — but strongly suggested he would not comply with it. Frequently referring to himself as “we” and including photos of the crowd at his Jan. 6 speech, the former president criticized the panel for examining the violent attack on the Capitol rather than his debunked claims of election fraud.
“Those who committed the Fraud, thereby having created the Crime of the Century, go unblemished and untouched, but those who fought the Crime have suffered a fate that was unthinkable just a short time ago,” Trump’s letter said.
That leaves open the question of whether the committee could ask the House this year to vote to hold Trump in criminal contempt of Congress if he does not comply with the subpoena.
Such a vote would ask the Justice Department to decide whether to prosecute Trump with the misdemeanor charge, as it did with former White House adviser Stephen Bannon, who awaits sentencing for his conviction on that charge.
Cheney mentioned Bannon’s fate in the courts during the committee hearing Thursday.
Thompson also said the committee was considering pursuing an obstruction investigation against the Secret Service after the agency dragged its feet for months in providing the information it requested.
Rep. Pete Aguilar, D-Calif., and others noted during the hearing that Secret Service officials deleted text messages from around the attack after the panel requested them. However, the agency provided more than a million other records that cast doubt on the credibility of some testimony from its witnesses.
Aguilar said the committee would reexamine an altercation Trump had in the presidential limousine after the rally on the Ellipse on Jan. 6, when Trump wanted to accompany his supporters to the Capitol.
“I will also note this committee is providing testimony regarding potential obstruction on this issue, including testimony about the advice given not to tell the community about this specific topic,” Aguilar said.
Thompson, speaking with reporters after the hearing, demurred when asked whether Tony Ornato, the former assistant director of the Secret Service, or Robert Engel, a Secret Service agent and head of Trump’s security detail on Jan. 6, lied to the panel.
“I think they could have been more forthcoming,” Thompson said.