One of the downsides to the Republicans winning a small and dysfunctional House majority is that the January 6th Committee will no longer exist beyond the end of the year. Well, actually, that’s not necessarily true, and we’ll get to that in a minute. But first the big news about the committee’s upcoming big crescendo.
The January 6th Committee has spun off a subcommittee whose job is to decide “whether to make criminal and civil referral referrals” to the Department of Justice, according to The Guardian’s Hugo Lowell. This means that the committee is indeed preparing to make DOJ referrals. It also suggests, to me at least, that the people appointed to the subcommittee are going to be the ones to make the decisions about what referrals to send. So who’s on this subcommittee?
It turns out Jamie Raskin is running the show, with Liz Cheney, Adam Schiff, and Zoe Lofgren also on the subcommittee. Raskin was a law professor, to it makes sense that he’s in charge of this process. There has been much consternation among the media and the public about whether the committee will make criminal referrals to the DOJ against Donald Trump and others for their January 6th crimes. But in reality, Attorney General Merrick Garland has already publicly stated that the DOJ has been watching the hearings. So the DOJ is already going to do what it’s going to do in that regard.
What stands out to me are the two areas in which Congress can influence the DOJ’s decision-making: contempt of Congress and lying to Congress. Thus far we’ve seen the January 6th Committee make contempt referrals against four people. The DOJ has indicted two of them, Peter Navarro and Steve Bannon, and the latter has since been tried and convicted.
These four contempt referrals were strategically made at specific times for various reasons. But the reality is that there are quite a number of referrals that the committee can still send. For instance, the likes of Roger Stone and Alex Jones pleaded the fifth to essentially every question, and there is a legal argument to be made that doing so is contempt. You’re only allowed to plead the fifth in response to specific questions where you could reasonably fear your answer could be used against you by prosectors – and you can’t make that argument when you plead the fifth to every question including harmless questions about formalities.
On another note, the committee has yet to reveal how many witnesses it’s caught lying (keep in mind, lying to Congress is a felony whether the person is under oath or not). So we have that to look forward to as well. I know that most folks are probably more interested in how the committee decides to formalize asking the DOJ to look at the actual January 6th-related underlying crimes that it’s uncovered. But process crimes like obstruction or lying to Congress are often what end up taking slippery career criminals down.
Finally, because Democrats have won the Senate majority, they will retain control of every regular Senate committee (Oversight, Judiciary, Intelligence, etc) for the next two years. So if the January 6th Committee feels that its work does need to continue for the long term, nothing says its investigation – or even its members – can’t be folded into a Senate committee in some way. It would be an unusual move, but these are unusual times.
Bill Palmer is the publisher of the political news outlet Palmer Report