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As Jan. 6 committee debates criminal referral for Trump, experts weigh pros and cons

(WASHINGTON) — Members of the House select committee appeared divided this week on whether they should make a criminal referral against former President Donald Trump at the conclusion of their investigation, with Chairman Bennie Thompson telling reporters it’s “not our job” to prosecute Trump before Vice Chair Liz Cheney said the decision to refer findings hasn’t been made.

The back-and-forth has reignited questions on the merits of sending a criminal referral to Attorney General Merrick Garland and the Justice Department. A referral is not required for the agency to investigate Trump, nor will one guarantee it, but public hearings outlining Trump’s “seven-point plan” to overturn the 2020 presidential election have amped up pressure on Garland to bring criminal charges against Donald Trump — the first in history against a former president.

While a criminal referral from the Jan. 6 committee might, on paper, end up being a mostly symbolic gesture, experts told ABC News the move deserves careful consideration.

“I don’t think that there is any member of that committee who has any doubt about whether Donald Trump violated the law or questions the actual merits of a criminal referral,” said Claire Finkelstein, director of the Center for Ethics and Rule of Law at the University of Pennsylvania Law School. “What I suspect is that it has much more to do with trying to preserve Congress’ authority and not wanting division between those who are trying to hold Donald Trump accountable in Congress and the Justice Department.”

“But,” she added, “the calculation that says, ‘We will hold back, and therefore preserve our own authority,’ is mistaken.”

Pros and cons

Amid concerns that Republicans will paint a criminal referral, and any subsequent DOJ investigation, as politically-motivated, the committee may decide to leave its findings in a public report, which would then serve as an indirect “handoff” to the Justice Department, said Ryan Goodman, a professor at New York University School of Law, who outlined some reasons that might give the committee pause.

“The downside with a referral could be that if Garland’s Justice Department does move ahead, that it would be perceived as potentially political by some parts of the American public,” he said. “It could be better for the Justice Department to appear more independent than seeming as though it’s responding to a direct referral coming out of the committee.”

On the other hand, Goodman said, while a referral doesn’t have any compulsory force tied to it, “I think Garland has shown us time and again that he is reactive, not proactive — and what he reacts to are other institutions, forcing the question.”

Garland told reporters that he and his prosecutors are closely watching the committee’s hearings this week, and the Department of Justice sent a new letter on Wednesday telling the committee’s chief investigator it is “critical” members “provide us with copies of the transcripts of all its witness interviews,” which the committee so far has declined to do. The request suggests there are matters DOJ is investigating beyond the violence on the ground on Jan. 6 it is already prosecuting — specifically alternate or fake electors as part of the discredited theory that Pence could unilaterally block the certification of Joe Biden as president.

Regardless of whether the committee makes a formal criminal referral, each legal expert ABC News spoke with said it would be concerning if the government did not, at the very least, open a criminal investigation.

“As a matter of constitutional theory and law and accountability and the separation of powers, if Merrick Garland doesn’t at least try, even if the Justice Department loses, there’s no disincentive left for any future president to not use the massive powers of the White House to commit widespread crimes,” said Kimberly Wehle, a professor at the University of Baltimore School of Law and a former assistant U.S. attorney. “It’s a green light for a crime spree in the White House because every other lever of accountability has failed.”

Then sentiment is clearly shared by Cheney, who has taken the tone of a criminal prosecutor in the hearings, arguing that Trump and his allies engaged in criminal activity, using video testimony of Trump White House attorney Eric Herschmann recalling how he suggested that Trump White House attorney John Eastman “get a great effing criminal defense lawyer.”

Using the clip to tease Thursday’s hearing, Cheney pointedly noted how a federal judge already found Trump’s pressure on then-Vice President Mike Pence to obstruct the congressional count of electoral votes “more likely than not” violated two federal criminal statutes: obstruction of an official proceeding and conspiracy to defraud the United States.

“President Trump had no factual basis for what he was doing and he had been told it was illegal. Despite this, President Trump plotted with a lawyer named John Eastman and others to overturn the outcome of the election on Jan. 6,” Cheney said.

Trump, in a 12-page statement sent to reporters on Monday night, blasted the panel illegitimate and their presentation one-sided, calling it “a smoke and mirrors show.”

While the committee weighs sending a formal criminal referral, here’s a look at federal statutes the committee and experts say Trump and his allies may have violated:

Obstruction of an official proceeding – 18 U.S.C. § 1512

The committee has outlined an alleged “sophisticated seven-point plan” it says Trump and his allies engaged in with the goal of stopping the peaceful transfer of power, including “corruptly” planning to replace federal and state officials with those who would support his fake election claims and pressuring Vice President Mike Pence to violate his oath to the Constitution.

Acting on a plan with the intent to stop the counting of electoral votes would likely violate 18 U.S.C. § 1512, which makes it a felony to attempt to “corruptly obstruct, influence, or impede any official proceeding,” such as a presidential election, and comes with up to 20 years in prison.

“If there is enough evidence to prove that Trump knew he had lost the election, then it’s obvious that he was acting with corrupt intent,” Goodman said. “You can’t try to pressure the vice president to overturn the election if you know you actually lost.”

Cheney, raising texts sent to White House chief of staff Mark Meadows urging Trump to call for violence to stop on Jan. 6, mirrored language in the statute Monday to raise the question, “Did Donald Trump, through action — or inaction — corruptly seek to instruct or impede Congress’ proceedings to count electoral votes?”

The committee has attempted to make the case that even without a “smoking gun” such as Trump admitting on tape he knew the election was lost, a preponderance of evidence should have made that clear to him, and members will lead their case next to the potential legal culpability of Trump’s direct — and indirect pressure — on the Justice Department and state election officials.

Conspiracy to defraud the United States – 18 U.S.C. § 371

This statute, also raised by Cheney ahead of Thursday’s hearing, criminalizes the agreement between two or more persons to “impair, obstruct or defeat the lawful government functions” and is punishable by up to five years in prison.

As part of the “seven-point plot” Cheney has laid out, the committee argues Trump’s legal team violated this federal criminal statute when instructing Republicans in battleground states to replace Biden electors with slates of Trump electors and send those votes to Congress and the National Archives.

While Trump’s intent to defraud would need to be proved for a conviction, experts interviewed by ABC News say, how Trump relates to other potential defendants would be considered when weighing potential criminal charges to bring, and they note some of his closest allies “have very significant criminal exposure.”

Former Trump White House attorney John Eastman, in drafting a plan for Trump to cling to power by falsely claiming Pence could reject legitimate electors, as well as Trump’s former chief of staff Mark Meadows, who allegedly with Trump son-in-law Jared Kushner, told then- Attorney General Bill Barr that Trump was “becoming more realistic” that he lost as they were “working on it,” may have a harder defense to make.

“If those individuals know Trump lost and indicated it, it’s going to be easier to prove the case against them,” Goodman said.

And if those close to Trump are charged, it may be easier to prove he agreed to participate in the conspiracy.

“For example,” Finkelstein said, “if John Eastman is found guilty of conspiracy to defraud the United States or obstruction of an official proceeding and Donald Trump was found to be in a conspiracy with John Eastman, the exact nature of his intent may not have to be the same as if he is a principal defendant because, under federal conspiracy law, he only needs to have agreed to the object to the conspiracy.”

Seditious conspiracy – 18 U.S.C. § 2384

Seditious conspiracy is defined as when two or more people in the U.S. conspire to “overthrow, put down, or to destroy by force” the U.S. government, or to oppose by force and try to prevent the execution of any law. It comes with 20 years in prison if convicted.

Since the use of force is an element of this crime, and Trump was not on the Capitol grounds during the attack, experts cautioned that the burden of proof might be more difficult in this instance.

“It must mean that Trump acted with foreknowledge and intend to use force and violence, and I think that’s going to be very hard to prove, though there is a lot of evidence that points in that direction,” Goodman said.

The Justice Department last week announced an indictment charging the then-leader and four other members of the extremist far-right group the Proud Boys with seditious conspiracy. Three have pleaded not guilty, and two others are set to enter not guilty pleas on Thursday. In an apparent suggestion the two were linked, the committee has argued that hundreds of Proud Boys traveled to Washington specifically for an insurrection, as indicated by members of the group marching on the Capitol before Trump even began speaking.

If the committee accuses Trump of conspiring with Proud Boys or other far-right extremist groups who are accused of organizing the Capitol attack, there’s more potential for a seditious conspiracy charge, which could then trigger Section 3 of the 14th Amendment, which prohibits those who had “engaged in insurrection or rebellion against the same [United States], or given aid or comfort to the enemies thereof” from serving in government.

“But in some sense,” Goodman cautioned, “it’s easier to prove that Trump might have had more knowledge that his supporters would try to enter the Capitol and occupy the Capitol physically but not use violence.”

Fraud by wire, radio or television – 18 U.S.C. § 1343

The committee introduced evidence this week of Trump and his allies fundraising $250 million off fraudulent election claims, asking for money for an “Official Election Defense Fraud” fund — but the panel said no such fund existed — with Rep. Zoe Lofgren, D-Calif., casting the “big lie” as “a big rip-off.”

“Claims that the election was stolen were so successful, President Trump and his allies raised $250 million, nearly $100 million in the first week after the election,” said Amanda Wick, senior investigative counsel to the committee, in a taped video. “Most of the money raised went to this newly created PAC, not to election-related litigation.”

The allegation has raised questions over potential wire fraud charges, or the attempt to defraud another through physical or electronic mail.

However, experts told ABC News this charge might be more difficult to prove, going back to the question of Trump’s intent. Prosecutors would have to convince a grand jury that Trump intended to mislead.

“He can say, ‘I wasn’t in charge of setting up those fundraising efforts, I didn’t know that they were potentially illegal,"” Wehle said. “So that’s a thornier case.”

To charge or not to charge

The experts ABC spoke with agreed the Jan. 6 committee has made a compelling case so far, and that the onus is on Garland and the Justice Department to follow the roadmap it’s laid out.

They argue the rule of law is at risk.

“What’s at stake is the very structure of our democracy and our ability to hold public officials to the confines of the law,” Finkelstein said.

“The committee’s public hearings have raised the stakes enormously for the country, in the sense that the criminal activity shown to have gone on is so brazen, that if the Justice Department does not enforce the law in this case, it really does further erode the rule of law and democracy,” Goodman said.

“Even if the effort fails, at least there’s a message sent that there is a cop on the block,” Wehle added. “Because we’re headed for a very, very dark era of American history if something doesn’t happen.”

ABC News’ Katherine Faulders, Alexander Mallin and Benjamin Siegel contributed to this report.

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