The House January 6 select committee is considering a criminal referral to the justice department against Donald Trump for obstruction of an official proceeding of Congress and conspiracy to defraud the United States on the recommendation of a special subcommittee, according to sources familiar with the matter.
The recommendations on the former president – made by the subcommittee examining referrals – were based on renewed examinations of the evidence that indicated Trump’s attempts to impede the certification of the 2020 election results amounted to potential crimes.
The select committee could pursue additional criminal referrals for Trump and others, given the subcommittee raised the obstruction of an official proceeding and conspiracy to defraud statutes among a range of options, including insurrection, and discussions about referrals continued on Thursday, said the sources.
The referrals could also largely be symbolic since Congress has no ability to compel prosecutions by the justice department, which has increasingly ramped up its own investigations into Trump’s efforts to overturn the 2020 election and subpoenaed top aides to appear before federal grand juries.
The recommendations presage a moment of high political drama next Monday, when the full panel will vote publicly to adopt its final report and formally decide on making referrals, and increase pressure on the attorney general, Merrick Garland, to seek charges over January 6.
Trump could be referred for obstruction of an official proceeding, the subcommittee is said to have concluded, because he attempted to impede the certification and did so with a “consciousness of wrongdoing” – as the panel has previously interpreted the intent threshold.
The former president was seen to have met the elements of the offense since he relentlessly pressured Mike Pence to refuse to count electoral college votes for Joe Biden, despite knowing he had lost the election and had been told the plan was illegal.
Trump could also be referred for conspiracy to defraud the United States, the subcommittee suggested, arguing the former president violated the statute that prohibits entering into an agreement to obstruct a lawful function of government by dishonest means.
The conspiracy charge was seen to be broadly applicable because Trump’s agreement with key lawyers – and potentially even the rioters – did not need to be overt, while the plan to have Pence reject Biden slates of electors with Trump slates that did not exist was deceitful.
The discussions about referring Trump for obstruction of an official proceeding and conspiracy to defraud appeared to build upon the major win for the panel in May, when a federal judge found that Trump and the lawyer John Eastman likely engaged in felonies in trying to subvert the 2020 election.
In the ruling, US district court judge David Carter in California ruled that Trump and Eastman had concocted a “coup in search of a legal theory” and ordered Eastman to turn over his most sensitive emails to the investigation, citing the crime-fraud exception to attorney-client privilege.
The emails later showed that Eastman had admitted that he knew that having Pence interrupt the January 6 certification was illegal – and yet urged Pence’s counsel Greg Jacob that the then-vice president should move ahead with the plot anyway.
The panel may not adopt all of the options presented by the subcommittee – it also suggested civil referrals to the House ethics committee for GOP congressmen and the disbarment of some Trump lawyers, among a number of options, though a witness tampering referral for Trump is no longer under consideration.
But members on the select committee have resolved to suggest criminal and civil charges to some degree, and any referral letters would be accompanied by supporting evidence not dissimilar to prosecution memorandums that are routinely drawn up by the justice department, one of the sources said.
A spokesman for the select committee declined to comment.
Regardless of how the panel proceeds against Trump, the intention to make criminal referrals against the former president has been practically an open secret for months as its members have used the issue of potential criminality to reinforce the seriousness of Trump’s conduct.
The recommendations from the subcommittee – led by congressman Jamie Raskin and comprised of vice-chair Liz Cheney, Adam Schiff and Zoe Lofgren, all members with a legal background – follow internal discussions for nearly a year that Trump committed crimes in seeking to nullify his defeat.
Even before the select committee filed its civil suit to Carter, Cheney read aloud parts of the the obstruction statute at a public business meeting last December. And then throughout public hearings in the summer, the panel detailed their findings like prosecutors, treating the public like a jury at trial.
If the members decide to move forward with criminal referrals against Trump in particular – essentially a letter informing the justice department they uncovered evidence of crimes – they would be creating a roadmap for a prosecution put together by the select committee’s top lawyers.
The select committee’s investigation has been principally driven by color-coded teams of investigative lawyers, many of whom have previously worked as federal prosecutors, conducting more than 1,000 witness interviews and reviewing documents and communications from Trump’s confidantes.
Still, the justice department has no obligation to take up any criminal referrals and, at this stage, could have a better perspective about the strength of criminal charges as it escalates its own January 6 inquiries with an investigative arsenal far more potent than possessed by Congress.
In recent months, an increasing number of top Trump advisors and election officials in states where Trump tried to nullify his defeat have been subpoenaed to testify before an increasing number of federal grand juries in Washington hearing evidence about events connected to the Capitol attack.
The recent subpoenas to election officials have demanded any and all communications involving Trump and the Trump campaign from June 2020 to January 2021, as part of the investigations into Trump’s so-called fake electors scheme, according to two subpoenas reviewed by the Guardian.
