There is no right answer to the question of whether or not to refer or not to refer, which makes it great fodder for strident opinion columns. Those who support the committee making a referral generally argue that it would send a powerful message to the public about Trump's conduct and might put pressure on Attorney General Garland to pursue the former president more aggressively. Opponents argue that a criminal referral is meaningless and that it could be used to deter Garland from pursuing Trump.
It's hard to imagine that a criminal referral would matter one way or the other.
The impeachment of Trump by the House and the conviction of him in the Senate were both criminal referrals. The idea that it would be a criminal referral by a subset of the same members of Congress who impeached Trump that would irretrievably politicize any prosecution is questionable. Any prosecution of Trump under the current administration would have strong and unavoidable political overtones, with or without a referral, and Trump would surely claim that it is a political witch hunt, just as he already has every other time he has faced a serious investigation of his conduct. There is no reason to believe that a criminal referral from Congress would be persuasive to a fair minded judge or juror.
There is no way to know if a referral would affect the Justice Department's decision-making. Garland has been unwilling to provide the sort of clarity that many would want, so it is not certain whether the investigation has been focused on Trump and his inner circle or not.
A criminal investigation focused on the highest levels of the Trump White House and campaign operations was needed long before the select committee began its investigation last July. The events of Jan. 6 itself and the impeachment of the House gave rise to a federal criminal investigation. The House impeachment managers last year tried to prove that Trump had committed a crime, and that many of their colleagues should have been able to do so, even though they achieved less than the Senate's supermajority.
There was never a need for another congressional fact-finding mission.
The committee's main focus should be on how to present its findings to the public, regardless of a referral. The committee may have a good amount of information that the Justice Department does not know, depending on the scope and intensity of the department's work, which even the committee and President Joe Biden do not seem to know. Just as it did recently in a lawsuit concerning Trump's legal adviser, the committee should give that information straightforwardly and professionally.
In a court filing last month, the committee argued that there was enough evidence that Trump had committed criminal conduct to warrant the disclosure of documents in Eastman's possession that might otherwise have been protected by legal privileges. The presiding judge agreed with that assessment and ruled that it was more likely than not, based on the information presented to him.
The committee can't order the Justice Department to investigate or prosecute Trump. It can lay out all of the evidence it has gathered over the past eight months, and it should aim to do so in a way that is accessible to the general public so the country has a clear and comprehensive account. It would be a great service to the community and a great help to the historical record. The point is not whether the committee's findings are accompanied by a criminal referral.
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