January 6 Committee Refers Trump for Criminal Prosecution

The Referral

On December 19, 2022, the House Select Committee investigating the January 6 attack voted unanimously to refer Donald Trump to the Department of Justice for prosecution on four criminal charges: obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and inciting or assisting an insurrection. It was only the second time in American history that Congress had referred a president or former president for criminal prosecution, and the first involving a charge of insurrection.

The Committee’s Findings

The committee’s final report, spanning more than 800 pages, concluded that Trump was the “central cause” of the January 6 attack and that the violence was the result of a deliberate, multi-step conspiracy to overturn the 2020 election. The report detailed how Trump pressured state officials to change vote counts, attempted to corrupt the Justice Department, pressured Vice President Pence to refuse to certify the election, summoned a mob to Washington, and then failed to act for hours as the Capitol was under siege. Vice Chair Liz Cheney declared that “no man who would act this way, at that moment in time, can ever serve in any position of trust in our great nation again.”

Legal Significance

While congressional criminal referrals do not carry legal force and the Justice Department was under no obligation to act on them, the referral carried substantial symbolic and political weight. It represented the conclusion of one of the most extensive congressional investigations in history, involving more than 1,000 witness interviews and hundreds of thousands of documents. Special Counsel Jack Smith, who had been appointed by Attorney General Merrick Garland in November 2022, was already conducting his own investigation, and the committee’s evidence and referral added to the growing body of material available to prosecutors.

The Final Report

The committee released its final report on December 22, 2022, along with supporting transcripts and evidence. The report recommended legislative reforms including changes to the Electoral Count Act, which Congress enacted separately. It also referred four Republican members of Congress, including House Minority Leader Kevin McCarthy, to the House Ethics Committee for defying committee subpoenas. The committee ceased to exist when the new Republican-controlled Congress was sworn in on January 3, 2023, and Republicans moved quickly to recast the investigation as a partisan exercise.