Jan. 6 Committee Pushing for Trump's Prosecution Could 'Backfire'

As a House Select Committee continues to look into the riot at the U.S. Capitol on January 6, 2021, some legal experts believe a criminal referral from Congress to the Department of Justice regarding former President Donald Trump could have negative results.

On Monday, a former member of the Obama administration told Politico that he believes such a move could actually "backfire" and make the Justice Department's work on any such case even more difficult.

This comes after a ruling last week from U.S. District Court Judge David Carter, who wrote that the former president "more likely than not" committed a felony when he attempted to illegally obstruct Congress on January 6, 2021.

Ronald Weich, a law professor at the University of Baltimore and a former assistant attorney general in the Justice Department during the Obama administration, told Politico that if the January 6 committee issued a criminal referral against Trump, it would only complicate things, adding politics into the mix.

"A formal criminal referral from Congress in this situation could backfire. The Justice Department's charging decisions should not be influenced by political pressure, and that's how this might look. A referral could make it harder for the Department to prosecute," Weich said.

Photo of Donald Trump
Some legal experts have said that if the Congressional committee investigating the January 6 Capitol riot issues a criminal referral to the Justice Department against former President Donald Trump, it could "backfire," making it harder for the Justice Department. Scott Olson/Getty Images

Weich is not the only legal expert to hold such an opinion. Randall Eliason, a criminal law professor at George Washington University, also told Politico that any such move from Congress would likely not be worth it in the long run.

"It would have no legal effect, just political ones," he said. "And Congress wouldn't be telling the DOJ anything it doesn't already know, or that it couldn't tell the DOJ without a referral. So I still feel like the costs outweigh any benefits."

In his ruling last week, Carter ordered that approximately 100 emails from attorney John Eastman be turned over to the committee as part of its investigation. Eastman, the lawyer who reportedly gave Trump advice on efforts to undermine the results of the 2020 presidential election, had been withholding the emails from the committee, citing attorney-client privilege.

Ultimately, the Department of Justice does not need a referral from Congress to bring forth a criminal prosecution, according to Politico. Representative Zoe Lofgren, a California Democrat who is a member of the January 6 committee, told Politico that a criminal referral from the committee was not completely necessary.

"A referral doesn't mean anything. It has no legal weight whatsoever, and I'm pretty sure the Department of Justice has read [last week's] opinion, so they don't need us to tell them that it exists," Lofgren said to Politico.

In a March interview with NBC News, Wyoming Representative Liz Cheney, one of two Republicans on the committee, referred to Trump's actions on January 6 as a "supreme dereliction of duty."

The Wall Street Journal's editorial board warned against indicting the former president last month. It said that such a move "could drag the country into a legal minefield and a political-revenge brawl more befitting a banana republic."

Last week, the committee voted to hold two Trump allies and advisers – Peter Navarro and Dan Scavino – in contempt of Congress for their refusal to cooperate with their investigation.

Newsweek reached out to January 6 Committee Chair Representative Bennie Thompson's office for comment but did not hear back before publication.