In general, for charges to be referred from a congressional committee to the DOJ, those charges have to directly involve the operation of Congress. In the past, House committees have forwarded referrals for acts such as failure to appear in response to a Congressional subpoena, or committing perjury when testifying under oath before a committee.
On Wednesday, Rep. Adam Schiff indicated that Trump could be charged with what he called the “ultimate crime against the Congress”—a criminal conspiracy to obstruct the Congress in its work. It seems likely that the decision the committee is making now revolves around which other members of Trump’s team took criminal actions as part of that conspiracy.
However, it’s likely there will be additional charges. For example, Mark Meadows never turned over all the documents that the committee had subpoenaed, including communications on Jan. 6. He may have managed to run the clock out on the committee, but that doesn’t mean he will avoid paying some penalty.
Rep. Jamie Raskin, who is in charge of the subcommittee which will make these referrals, has stated that any conspiracy charges will be dealt with separately from other charges the committee sends to the Justice Department. Which would seem to make it highly likely that Meadows, along with others, might face multiple charges related to refusing testimony or withholding documents when the vote is tallied on Sunday.
Both Eastman and Clark spoke to the committee, but both invoked their Fifth Amendment rights against self incrimination, severely limiting any information gained in their interviews. It’s clear that the broad investigation underway at the Department of Justice under special counsel Jack Smith is already looking into the scheme cooked up by Eastman to interfere with the final tally of electoral votes in Congress. Any referral from the House on that point might not add any impetus to the DOJ investigation, though it would put the House committee on record in their determination.
Giuliani, whose license to practice law has been suspended in D.C. and New York, and who faces possible disbarment in hearings that began this week, did speak with the committee at length, though it’s unclear how much information he provided as much of that testimony has not yet been made public.
With Republicans certain to end the committee’s investigation when they take power, these charges are less about seeing Trump and his team face conviction—that part is more up to Smith and the ongoing investigation by the DOJ, which will definitely not end in January. Instead the referrals will be another opportunity, perhaps the final opportunity, for the committee to get some of its findings on record, and to make it clear that the results of their investigation show that Donald Trump was the leader of a criminal conspiracy conducted at the highest possible level.
