Jan. 6 Committee to Make Criminal Referrals to US Department of Justice

Rep. Bennie Thompson (D-Miss.), chairman of the Jan. 6 committee, delivers remarks alongside Vice Chairwoman Rep. Liz Cheney (R-Wyo.) during a hearing in the Cannon House Office Building in Washington, on Oct. 13, 2022. (Drew Angerer/Getty Images)

Members of the House Jan. 6 Committee have announced that the panel will make several criminal referrals to the Department of Justice (DOJ) before its dissolution in January.

Over the past several months, the panel has attempted to present a criminal case against former President Donald Trump, contending that the Jan. 6 Capitol breach was the culmination of a months-long effort to overthrow the U.S. government.

The panel capped off its tentative final hearing with its biggest announcement to date: a vote to subpoena Trump.

Trump has begun a legal fight to counter the subpoena, an almost unprecedented effort.

Now, as the 117th Congress comes to a close, the panel has announced fresh criminal referrals.

“We have made decisions on criminal referrals,” panel Chairman Bennie Thompson (D-Miss.) told reporters.

“We will” pursue criminal referrals, he said. 

Some reports indicate that even though the committee will pursue criminal referrals, they haven’t decided who to recommend charges against or which charges to recommend. 

According to Politico’s Kyle Cheney: “Chairman Thompson tells us that the select committee has *not* made any specific decisions about whether any particular person will be criminally referred to DOJ. The committee has generally agreed that it’s a tactic they will use, but no vote yet on who or for what.”

When asked whether witnesses had perjured themselves, potentially grounds for some criminal referrals, Thompson said that was “part of the discussion.”

Rep. Jamie Raskin (D-Md.), another member of the panel, echoed Thompson.

“We’re in the process of bringing forward different recommendations to the full committee for consideration,” Raskin said.

Republicans Denied Subpoenas

A key issue for the Jan. 6 panel will be how to respond to the refusal of several Republicans to answer its subpoena.

Most notably, after the committee attempted to obtain documents and records from House Minority Leader Kevin McCarthy (R-Calif.), McCarthy denied the summons, opining that the subpoena was “not valid or lawful.”

“All valid and lawfully issued subpoenas must be respected and honored,” Elliot S. Berke, an attorney for McCarthy, said at the time. “Unfortunately, the words and actions of the Select Committee and its members have made it clear that it is not exercising a valid or lawful use of Congress’ subpoena power.”

As he’s the most likely choice for speaker during the 118th Congress, McCarthy’s refusal is the most notable.

However, several other Republicans have also refused subpoena requests.

These include Reps. Jim Jordan (R-Ohio), Mo Brooks (R-Ala.), Scott Perry (R-Pa.), and Andy Biggs (R-Ariz.).

The first congressman to be targeted by the partisan committee was Perry, who quickly rejected the request to testify, calling the committee “illegitimate.”

Republicans have contended that while they would comply with a lawful subpoena, the lawfulness of the Jan. 6 committee is disputed.

Specifically, critics of the panel point to the way it was formed.

Created by a June 2021 party-line vote, the panel was chaired almost exclusively by Democrats. Speaker of the House Nancy Pelosi (D-Calif.), in an unprecedented move, refused to appoint McCarthy’s picks for the panel—Reps. Jim Banks (R-Ind.) and Jordan.

This move was a historic departure from House tradition, which has until now been that minority leaders are permitted to pick the members that they want to serve on a committee.

Pelosi cited concerns over the integrity of the investigation as her rationale for refusing the request. Instead, she placed Rep. Liz Cheney (R-Wyo.) as the ranking member of the panel, also appointing Rep. Adam Kinzinger (R-Ill.) as a member. Both were virulent critics of Trump inside the Republican Party.

Democrats will need to determine what they wish to do about these refusals before the end of this session of Congress.

What Happens Next

After the Jan. 6 panel releases its criminal referrals, it will be up to the DOJ to decide what to do next.

In October 2021, after the House voted to hold former White House adviser Steve Bannon in contempt of Congress for refusing a subpoena, Attorney General Merrick Garland announced that the department would pursue criminal charges.

Currently, litigation is ongoing between the Jan. 6 panel and Trump, who needs only to run out the clock on the panel’s expiration at the end of this Congress.

A decision to pursue criminal charges against either Trump or sitting Republican members of Congress could be a tough call for Garland, whose department has already faced allegations of “weaponization” against Democrats’ political enemies.

The decision to make criminal referrals comes after Rep. Zoe Lofgren (D-Calif.), a member of the panel, announced that the committee would release “all the evidence” it has gathered before the end of the 117th Congress.