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DOJ likely to act on criminal referrals from Jan. 6 committee, experts say

The Justice Department can do what it wants with the referrals from lawmakers who spent 18 months studying the Capitol riot. Legal experts are not anticipating inaction.

WASHINGTON (CN) — One day after lawmakers transmitted a first-of-its-kind criminal referral against a former American president, former federal prosecutor Neama Rahmani says the Justice Department's special counsel Jack Smith may try flipping co-conspirators if he intends to prosecute Donald Trump.

A prime candidate would be John Eastman, the other individual who along with Trump, faces a criminal referral for fomenting the Jan. 6, 2021, attack on the U.S. Capitol.

“The other potential targets don’t have as much evidence against them, so Eastman may have to cut a deal to save himself,” Rahmani said. “That leverage may work to Smith’s benefit.”

In their 18-month investigation of the insurrection, a special House committee portrayed Eastman as the architect of the movement to keep Congress from certifying Joe Biden as the 2020 president-elect. Eastman, a law professor working with Trump's campaign, wrote a 2-page memo to Vice President Mike Pence that urged him to throw out the votes of certain states.

Quinta Jurecic, a governance studies fellow at the Brookings Institution, noted that that the committee’s referral of criminal charges against Trump and Eastman are essentially suggestions that the Department of Justice “is free to ignore.”

“We already know that the department is investigating Trump's actions in relation to Jan. 6,” she said in an email statement, “so it's hard to say what weight the special counsel will or won't give the committee's actions.”

The Department of Justice is investigating Trump over his efforts to overturn the 2020 election, as well as for having taken government records from the White House and stored them at his South Florida resort home, Mar-a-Lago. Attorney General Merrick Garland has largely remained tight-lipped about probes involving the former president, but he appointed special counsel to oversee the matters shortly after Trump launched his 2024 presidential campaign in November.

And the department's probe into the Capitol riot has resulted in charges against approximately 880 people so far.

As Jurecic sees it, it will be hard for the department, under Garland’s command, to avoid the significance of a congressional committee recommending prosecution of a former president for the first time ever.

Despite whatever it chooses to do with the referrals, the committee’s decision to make them carries “symbolic value in and of itself,” she said.

Trump has written off the criminal referrals as political persecution, posting on his Truth Social site Monday that prosecuting him would be “a partisan attempt to sideline me and the Republican Party.”

The committee's full report remains under wraps until Wednesday, but Daniel Richman, a professor at Columbia Law School, said that the 118-page executive summary that is already public is “far more than a series of inflammatory allegations.”

Richman expects the full report to consist of a detailed prosecution memo, “of the sort the public rarely gets to see and with impressive evidentiary support."

“That means that the DOJ — which ordinarily can avow, somewhat disingenuously, that it will pursue any case where the law and facts allow, and rest secure that it will present the facts only if it decides to go forward — does not have that luxury,” he added.

Should the Department of Justice opt not to pursue charges, Richman said it will likely have to give specifics about where it disagrees with the committee's handling of the evidence and the law.

A spokesperson for the Department of Justice declined to comment on the referrals.

Just two Republicans worked with seven Democrats on the committee, and House Speaker Nancy Pelosi hand-picked them all. Despite the sense of partisanship that such membership creates, Clark Neily, senior vice president for legal studies at the CATO Institute, noted that the panel's evidence supporting criminal referrals “cannot be so easily dismissed.”

“Simply put, the committee has articulated a powerful prima facie case that a sitting president conspired with members of his staff to prevent the peaceful transfer of power following an election whose results could not reasonably be questioned,” Neily said in an email statement.

The Department of Justice therefore will probably be more interested in the evidence laid out in the report rather than the committee’s analysis or conclusions drawn from it, he said.

And Neily said he does not expect the committee’s criminal referrals to influence the department’s decision about whether to pursue charges. But the report may help prosecutors form a more complete understanding about what happened on Jan. 6, “which seems likely to increase rather than decrease the likelihood that the Justice Department will seek to indict former president Trump.”

Congressman Adam Schiff, California Democrat on the committee, said Monday that the panel did not try to identify all of the former president’s potential co-conspirators and that the “role of many individuals may be incomplete even today, because they refuse to answer our questions.”

“We trust that the Department of Justice will be able to form a far more complete picture through its own investigation,” Schiff said.

The committee is planning to officially transmit the criminal referrals to Garland this week before it is set to dissolve on Jan. 3, just three days before the two-year anniversary of the Capitol attack.

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