The US attorney general said on Monday that he was watching the House January 6 select committee’s hearings, as he faces mounting pressure from congressional Democrats to open a criminal investigation into Donald Trump over his role in the Capitol attack.
Merrick Garland also said at a press conference at the justice department’s headquarters in Washington that internal office of legal counsel guidelines did not prevent him from opening an investigation into the former president.
“I am watching and I will be watching all the hearings, although I may not be able to watch all of it live,” Garland said shortly after the select committee concluded its second hearing. “I can assure you the January 6 prosecutors are watching all of the hearings, as well.”
The attorney general declined to address potential investigations into Trump or other individuals mentioned by the select committee at the hearings, saying that could undermine prosecutors’ work and would be unfair to people under scrutiny who might never be charged.
But Garland reiterated earlier promises that the justice department is exploring potential criminal conduct regardless of those people’s level, their positions in the government and proximity to Trump, or whether they were at the Capitol on 6 January 2021.
The justice department appears in recent weeks to have expanded its criminal investigation to examine top figures connected to Trump’s efforts to overturn the results of the 2020 election, including government officials and Republican lawyers and operatives.
One grand jury in Washington is investigating the rallies that preceded the Capitol attack and whether any executive or legislative branch officials were involved in trying to obstruct Joe Biden’s election certification, according to a subpoena seen by the Guardian.
The justice department also appears to be investigating political operatives close to Trump, according to another grand jury subpoena seen by the Guardian, as well as some Trump lawyers involved in a scheme to send fake Trump electors to Congress.
Lisa Monaco, the deputy attorney general, confirmed in January that prosecutors were looking into any criminality in that plan, under which Trump’s lawyers hoped the former vice-president Mike Pence would refuse to certify those states and return Trump to office.
The attorney general added some additional insight into the justice department’s decision-making with respect to opening an investigation into Trump, saying that internal guidelines did not prevent him from taking such action if warranted.
“There’s nothing within the office of legal counsel that prevents us from doing an investigation,” Garland said. “There’s nothing that’s coming in the way of our investigation … We’re just going to follow the facts wherever they lead.”
Garland’s remarks about the office inside the justice department, which issues opinions for the agency that are broadly seen as binding, did not address whether the guidelines preclude charging, not just investigating, a former president.
But his careful response reflected the delicate and complicated legal considerations looming over the justice department should it consider whether to investigate and charge Trump over his efforts to reverse his 2020 election defeat to Biden.
In court filings and at its hearings, the select committee has been making the case that it believes Trump committed at least two felonies – obstructing a congressional proceeding and defrauding the United States – given evidence it has collected in its 11-month inquiry.
The question of whether to pursue a case against Trump has started to prompt serious discussions among senior justice department officials, according to a source familiar with the matter, though there has been no indication that Trump is currently a target of an investigation.
Meanwhile, Congressman Bennie Thompson, the chairman of the January 6 committee, said on Monday that he did not expect to make a criminal referral against Trump or anyone else over the Capitol attack to the justice department at the conclusion of its investigation.
The chairman appeared to indicate the panel would put the evidence of potential crimes by the former president into a final report – currently expected to come in September – and that Garland’s justice department would then have to decide whether to pursue a case.
“No,” Thompson said when asked explicitly on Capitol Hill whether the select committee would make a referral against Trump, “that’s not our job. Our job is to look at the facts and circumstances around January 6, what caused it, and make recommendations after the hearings.”
The disclosure from Thompson reflects a sense among some of the members on the panel that a criminal referral would make a resulting investigation by the justice department appear political and could undermine a potential case, according to sources close to the inquiry.
If the evidence is sufficient for the justice department to consider investigating or charging Trump, the sources said, then the justice department should be able to move ahead with a case regardless of whether the select committee makes a criminal referral.
The internal deliberations also come as the select committee has publicly said Trump repeatedly broke the law as he sought to overturn the 2020 election results, but criminal referrals are not binding and the final decision to prosecute rests with the justice department.
