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Dear Reader,

In precisely 18 days, the January 6 House Select Committee will cease to exist. 

When the newly-elected Republican majority takes over on January 3, 2023, its first order of business will be to snuff out the Committee; elections have consequences, after all. But don’t weep for the Committee. They’ve had plenty of time to do their work, they’ve done it exceedingly well, they’ve long known this day was coming, and they’re prepared to go out with a bang.

While the Committee is certainly not above reproach – I’ve levied a criticism or two in this space – in the final calculus, they’ve done a remarkable job uncovering the truth behind the January 6 Capitol attack. We now know so much more than we knew when the Committee started its work a year and a half ago. They’ve often outpaced the Justice Department, despite the massive investigative advantages held by federal prosecutors. The Committee can take a bow. I’ll applaud.  

But their work isn’t quite done yet, and the next few weeks will determine whether and how the Committee’s findings will endure. Here are the four big issues left on the board.

Criminal referrals. This is the shiniest attention-grabber, but it’s really more about stagecraft than substance. The Committee’s Chair, Rep. Bennie Thompson, has confirmed that the Committee will make some sort of formal referral to the Justice Department. And while Thompson stopped short of specifying who the central focus of any referrals would be, we all know the answer: Donald Trump. 

Legally, a criminal referral means nothing. It’s simply a request by any outsider for any prosecutor to take a look at anything. (Want to make a referral to DOJ right now? Just click this link. Easy as that.) A referral neither compels prosecutors to do anything, nor do they need one to take action; indeed, DOJ is already investigating Trump, even without a formal referral. Of course, a criminal referral from Congress, focused on a former president, is a big deal politically, and it’s unsurprising that the Committee feels a need to issue one as a symbolic capstone of its work. 

The real question is how a referral might impact prosecutors, and a potential prosecution. On one hand, perhaps a referral will help galvanize public opinion and broadly acclimate the country to the prospect of our nation’s first-ever indictment of a former president. On the other hand, it will give Trump a talking point (if not necessarily a technical legal defense). He surely will claim: A committee of partisan Democrats and my political enemies tells the Justice Department to indict, and then prosecutors do just that. This is the definition of a political prosecution. I’m not saying this argument carries much water; it relies on a conflation of correlation and causation (any indictment certainly would happen after a referral, but not necessarily because of a referral). But you can bet Trump will make this claim, and that it will resonate with his supporters. A referral is coming soon, but if I’m back at DOJ as a prosecutor, my position would be: thanks, but no thanks. 

Contempt of Congress. The Committee has done a commendable job obtaining testimony from over a thousand witnesses in total, including White House insiders and Trump loyalists. (Whether those witnesses told the full truth remains to be seen.) But let’s remember that the Committee loudly trumpeted its hardball tactics when it subpoenaed Representatives Kevin McCarthy and Jim Jordan and three other Republican House members. Yet when McCarthy and company laughed off those subpoenas, the Committee did nothing – perhaps wary of the possibility, which has now come to pass, that Republicans would take control of Congress and capture the subpoena power for themselves. 

Then, in a grand flourish, the Committee ended its final hearing by firing off the granddaddy of all subpoenas, to Trump himself. But like his congressional enablers, Trump scoffed. And, again, the Committee sat on its hands.

In theory, the Committee could still pursue criminal contempt against Trump, McCarthy, and the rest. That would require a vote of the Committee, and then a majority vote of the full House; query whether outgoing Speaker Nancy Pelosi would allow such a move as her final act in the chair, and whether nearly every House Democrat would vote for contempt, which would be necessary given Democrats’ current razor-thin majority. If all this somehow came to pass, then the case would go over to DOJ to decide whether to prosecute. The Committee has done this four times already; DOJ has prosecuted two (Steve Bannon, who now has been convicted and sentenced to four months), and Peter Navarro, who awaits trial next month) and declined on two others (Mark Meadows and Steve Bannon). 

If the Committee truly was bent on enforcing the subpoenas it served on the most powerful players, they could have done so already. But they’ve made clear by their inaction over many months that they have no such inclination. In theory, the Committee still has enough time to seek contempt – critically, any such charges would survive the arrival of the next Congress – but, in practice, they won’t. 

The report. Next week, the Committee will issue its final written report. (A quick nod to those beleaguered staffers, who surely have been putting in 22-hour workdays to get this thing done by the looming deadline.) We’ve recently seen reporting that some Committee members and staff are “angered and disillusioned by [Rep. Liz] Cheney’s push to focus the report primarily on former president Donald Trump.” 

I’m confused on this one. Exactly what, in the view of these dissenters, should the report focus on, if not Trump? It seems to be a false choice: focus on Trump or focus on the coup plot as a whole. But why are those two things mutually exclusive? How can the Committee tell the full story of the coup without placing Trump at the fore? In the end, it’s inevitable that the report will feature Trump front and center, as it should.

Sending evidence to prosecutors. For months now, the Justice Department has been pleading with the Committee to share its evidence. The Committee’s response, for the most part, has been a bit smug and territorial: it’s our evidence and we’ll share it with you eventually, but only when we feel like it. 

The Committee has had the stage almost entirely to itself, but soon there will be no more spotlight, and no more cause for glory-hoarding. It’s now time – past time, really – for the Committee to open up their files to prosecutors. The Justice Department isn’t even trying to play coy about it; Attorney General Merrick Garland said recently, “We would like to have all the transcripts and all the other evidence collected by the Committee so that we can use it in the ordinary course of our investigations.” DOJ has swallowed its pride and come begging, hat in hand. Now it’s time for the Committee to put away the egos and turn the materials over.

Indeed, transmission of the Committee’s evidence to the Justice Department will mark a symbolic torch-passing as well. The Committee is just about done with its work. They’ve done it well, and soon they’ll have to start playing defense as McCarthy and company begin their own slate of investigations. 

Now it’s time for prosecutors to take over. They’ll determine whether the people who plotted the coup wind up only as the subjects of memorable public hearings and a written report – or whether they’ll face more lasting and severe consequences.

Stay Informed,

Elie