Former President Donald Trump announces he is running for President again during an event at his Mar-a-Lago home on November 15, 2022 in Palm Beach, Florida. Credit – Joe Raedle—Getty Images
Donald Trump is once again poised to make history. No former president has ever been the subject of a criminal referral from Congress, and that could change early next week.
The House Jan. 6 Committee is set to hold its final meeting on Monday, one in which it could vote on whether to refer Trump to the Department of Justice for criminal prosecution for his involvement in trying to overturn the results of the 2020 election and encouraging the violent attempt to stop the Jan. 6 certification of Joe Biden’s election win. The referral, and the documentation supporting it, would then likely be handed to Special Counsel Jack Smith, who Attorney General Merrick Garland appointed last month to take over criminal investigations involving Trump. It will be up to Smith to ultimately decide whether to bring charges.
The expected vote to recommend prosecution of Trump would be a climax to the committee’s 18-month investigation, which involved over 1,000 interviews, the gathering of over a million documents, and 10 public hearings. The committee is also finalizing a public report that could be released as soon as next week. The committee voted in October to subpoena Trump to testify, but Trump refused to appear.
The committee is also considering criminal referrals for people who allegedly helped Trump try to overturn the election results by creating fake slates of electors such as former Justice Department official Jeffrey Clark, Trump’s former White House chief of staff Mark Meadows, attorney John Eastman, and Rudy Giuliani, Trump’s former personal attorney.
The referrals would be largely symbolic, but experts say that symbolism—and the evidence behind it—can still carry a lot of weight.
“Symbols are hugely important,” says Debra Perlin, the policy director for Citizens for Responsibility and Ethics in Washington, who argues a criminal referral of Trump would “frame a discussion” around the deadly attack on the Capitol and the events that preceded it.
“It can help prevent and counteract misinformation and disinformation in the society that we thrive in,” Perlin says, “because you can point to something authoritative, coming from Congress, that says that this happened, that there needs to be accountability, and that says that criminal prosecution is the path that needs to be taken moving forward.”
If the Committee votes to send criminal referrals, it means “they figured that writing a report wasn’t enough,” says Timothy Naftali, a presidential historian at New York University and a former director of the Richard Nixon Presidential Library and Museum.
Donald Trump’s “the only president to have ever tried to overturn an election,” Naftali continues. “So, yea, this is a unique referral. It’s also a unique moment in our history.”
Other presidents have faced legal jeopardy from their actions while in office. But in most of those cases, the threat of prosecution did not follow them after they left office. In 1974, President Gerald Ford famously issued a pardon to his predecessor, Richard Nixon, clearing Nixon of any crimes that he might have committed against the United States as President.
The pardon came after both chambers of Congress had investigated Nixon’s involvement in widespread abuses of power stemming from a break-in at the Democratic National Committee’s offices in the Watergate complex by men working for his re-election campaign.
No congressional committee ever issued a criminal referral to the Department of Justice for Nixon. Rather, the reverse occurred, as Leon Jaworski, the special prosecutor tasked with investigating Nixon, sent Congress a “roadmap” laying out evidence of criminal violations…
Read More: Why a Trump Criminal Referral by the Jan. 6 Committee Would Be So Historic