The prospect of criminal referrals has assumed heightened significance in the select committee’s final days, and it’s a marked shift for members who once seemed skeptical of and even downright opposed to making any at all.
“I think the more we looked at the body of evidence that we collected, we just felt that while we’re not in the business of investigating people for criminal activities, we just couldn’t overlook some of them,” Thompson said.
Thompson had suggested over the summer that a criminal referral of Trump was unlikely, and other committee members, like Reps. Jamie Raskin (D-Md.) and Zoe Lofgren (D-Calif.), similarly suggested they didn’t see a need, or even a role, for the panel to take the unusual step.
Congress has no power to initiate criminal charges against its investigative targets, a power that falls exclusively under the Justice Department. Lawyers at the department have made clear for months that they want to review the select committee’s evidence and could use it as the basis for potential criminal charges, regardless of any referrals sent by the committee.
But select committee members slowly coalesced around the idea that it should make criminal recommendations anyway. Raskin said he started out “questioning why we were even talking about referrals” but he’s been “educated” and members have “all evolved in our positions.”
“I think that the rationale for doing them is when the magnitude and the gravity of the offenses compel Congress to speak about what it has found,” Raskin said. “Obviously, that is coming from the legislative branch, so you take it for what it’s worth within the system of separate powers. Ultimately, prosecutorial decisions are Executive Branch decisions but we certainly have a voice.”
Raskin is leading a four-member subcommittee that will present recommendations to the full select committee at Sunday’s virtual meeting. Thompson said that discussion will inform the panel’s final public meeting, currently targeted for Dec. 21, when members will vote on the release of their report and any associated referrals.
Thompson emphasized that the referrals won’t just be criminal. Panel members are also likely to make referrals to the Ethics Committee regarding Republican lawmakers who refused to comply with select panel subpoenas — including incoming GOP Leader Kevin McCarthy — as well as referrals for bar discipline against lawyers who aided Trump’s effort to seize a second term.
The committee is also confronting a slew of other unfinished business, including how much of its work product — including more than 1,000 witness transcripts — to publicly release.
Thompson has repeatedly emphasized that the committee plans to release virtually all of the transcripts, with some limits related to witnesses who spoke to the committee on condition of anonymity. On Thursday, Thompson also confirmed that some categories of testimony would be redacted — including law enforcement sensitive information and details that implicate personal privacy. He also said the call detail records that the panel used to map contacts between Trump and others in his orbit would likely not become public.
Asked about the hundreds of hours of video depositions the committee collected — snippets of which were aired during the panel’s series of summer hearings — Thompson said the panel is still considering whether to make them public. If not, they’ll be warehoused at the National Archives along with other committee records, he noted.
Additionally, Thompson said the panel is unlikely to make recommendations on whether any members of Congress ran afoul of the 14th Amendment’s Insurrection Clause, which bars any violators from holding public office. He said that prospect hasn’t been discussed internally by the committee, though he added he was aware it had been raised by others in Congress.