WASHINGTON (AP) 鈥 The House Jan. 6 committee may have outlined a potential criminal case against Donald Trump, but it doesn't actually bring the former president any closer to prosecution.
The Justice Department already has been conducting its own wide-ranging investigation into the Jan. 6, 2021 insurrection at the U.S. Capitol and the efforts by Trump and his allies to undo the results of the 2020 presidential election. The has given no indication of what charges he might bring, but he's under no obligation to take the committee's criminal referral into account or to follow the prosecution roadmap laid out by the panel.
鈥淭his is historic, that a congressional committee has recommended criminal charges against a former president, but it does not change the fundamental fact that the Justice Department gets to decide who should be charged with crimes,鈥 said Ronald Weich, the dean of the University of Baltimore School of Law and the department's former assistant attorney general for legislative affairs.
鈥淭he Justice Department,鈥 he added, 鈥渟hould not be influenced by another branch of government.鈥
The panel referred Trump for possible prosecution for four separate criminal offenses, related both to the riot itself and his efforts to cling to power. Those include allegations he aided the insurrection, conspired to defraud the United States by trying to prevent the transfer of power, conspired to make a false statement through an alleged scheme involving so-called 鈥渇ake electors鈥 and obstructed an official proceeding 鈥 the counting by Congress of electoral votes.
At least some of those potential charges cover general areas the Justice Department is known to already be investigating.
Prosecutors in June, for instance, to Republicans who served as 鈥渇ake electors鈥 in battleground states won by Trump. Trump and allies pressured authorities in those states to replace Biden鈥檚 electors with ones for him on specious or nonexistent allegations that his victory was stolen.
Easily the most consequential statute invoked by the committee is one that makes it a crime to either incite or aid an insurrection or rebellion against the government. The statute bars anyone convicted of it from holding future office.
It's unclear how seriously the Justice Department might consider such a statute, which has not been used in any of the more than 900 federal prosecutions of the Capitol rioters themselves.
In the executive summary of the report, the committee says Trump was directly responsible for summoning to Washington supporters who later stormed the Capitol, and earlier this year 鈥 in refusing to dismiss lawsuits against Trump by Democratic lawmakers 鈥 held that Trump's speech to a crowd of loyalists that day 鈥減lausibly鈥 led to the riot.
But the committee's suggestion that Trump could be held accountable for his inaction during the riot, including by not dispatching the military to the Capitol or by waiting hours to tell the crowd to disperse, may make sense on a 鈥済ut level鈥 but is a theory the Justice Department is likely to be wary of, said Rory Little, a professor at UC Hastings Law in San Francisco.
鈥淭hat idea, that standing by and watching an insurrection happen, when you might be able to do something about it, that鈥檚 a pretty dangerous precedent to set,鈥 he said. 鈥淎merican criminal law doesn鈥檛 generally punish people who just stand by and watch.鈥
David Alan Sklansky, a Stanford Law School professor, said Trump's inaction could provide compelling evidence of his intent during other actions, such as a speech at the Ellipse before the riot in which he encouraged supporters to 鈥渇ight like hell.鈥
No matter what, the criminal referrals will almost certainly accelerate demands for action by Attorney General Merrick Garland from Democrats and members of the public who regard the referral, and the accompanying evidence being transmitted to the Justice Department, as a template for prosecution.
And the committee 鈥 whose chief investigative counsel is a former U.S. attorney 鈥 also has earned broad credibility for its information-packed public hearings and for a sprawling investigation that included interviews with more than 1,000 people.
There have also been instances in which judges have agreed that there is basis to suspect Trump of wrongdoing.
In March, , in authorizing the release to the House committee of more than 100 emails from conservative lawyer and Trump adviser John Eastman, asserted that it was 鈥渕ore likely than not鈥 that Trump had committed crimes in his attempt to stop the certification of the election. The judge, David Carter, cited in his ruling two of the same statutes 鈥 conspiring to defraud the U.S. and obstructing an official proceeding 鈥 as the committee did in its report Monday.
The committee has already made multiple referrals for contempt of Congress that the Justice Department has taken up. Longtime Trump ally Steve Bannon of defying a congressional subpoena, and former adviser Peter Navarro on similar allegations.
But there鈥檚 a distinction between the Trump referrals on Monday and those involving Bannon and Navarro, Weich said. Under the contempt of Congress law, Congress is itself the victim and the Justice Department is obligated to present the case to a grand jury, he said.
That鈥檚 different from the Trump referral, where Congress is reporting a broader crime, one they鈥檝e framed as an attack on democracy.
And more broadly, the burden of proof faced by the committee -- which did not need to cross-examine witnesses or test evidence before a jury -- is vastly different from what the Justice Department would have to establish in court.
鈥淚t鈥檚 a completely different judgment,鈥 said Randall Eliason, a former federal prosecutor in Washington who teaches law at George Washington University.
鈥淐ongress is making a political judgment. They鈥檙e not prosecutors, it鈥檚 not their role to make those decisions, and they鈥檙e not trying to prove these allegations beyond a reasonable doubt to a jury.鈥
