WASHINGTON—As the Jan. 6 select committee investigating the attack on the Capitol continues its public hearings, a public disagreement has emerged between committee members about whether it would consider referring criminal charges against former President Donald Trump to the Justice Department.
In comments to reporters late Monday, Rep. Bennie Thompson (D., Miss.), chairman of the committee, cast doubt on whether it would make a criminal referral to the Justice Department. “We’re going to tell the facts,” Mr. Thompson said. “If the Department of Justice looks at it and sees something that needs further review, I’m sure they’ll do it,” he said, adding that a criminal referral is “not our job.”
Other committee members pushed back. Vice Chairwoman Liz Cheney (R., Wyo.) tweeted that the committee “has not issued a conclusion regarding potential criminal referrals.” Rep. Elaine Luria (D., Va.) tweeted that the committee “has yet to vote on whether we will recommend criminal referrals to the Department of Justice,” adding that it is the committee’s responsibility to report criminal activity to the Justice Department.
Rep. Adam Schiff (D., Calif.) said during an interview on CNN that while he was unaware of Mr. Thompson’s statement, “I don’t know that the committee has reached a position on whether we make a referral or what the referrals might be. I thought we were deferring that decision until we concluded our investigation.”
Mr. Trump was impeached by the House of Representatives last year on a count of inciting an insurrection. He was acquitted in the Senate. He has denied wrongdoing related to the riot and called the committee’s probe a sham.
Separately, the committee on Tuesday delayed a public hearing scheduled for Wednesday focused on Mr. Trump’s efforts to prod Justice Department officials to intervene in the election. Thursday’s hearing remained on schedule and is expected to focus on Mr. Trump’s attempt to pressure his vice president, Mike Pence, to reject several slates of electors on Jan. 6, 2021, to swing the election.
Committee members have indicated they believe Mr. Trump broke the law when he attempted to overturn the 2020 presidential election. Ms. Cheney in her opening statement last Thursday said the former president’s attempt to pressure Mr. Pence to reject electors on Jan. 6 “was illegal and it was unconstitutional.”
Members of the Jan. 6 panel have pointed to a ruling by U.S. District Judge David O. Carter, in a case involving the committee’s attempts to obtain certain documents, that Mr. Trump and his attorney, John Eastman, “more likely than not” committed a felony in their efforts to block the 2020 election results. Judge Carter said the campaign was “a coup in search of a theory.”
Mr. Eastman, a former professor at Chapman University in Orange, Calif., had advanced a theory that Mr. Pence could stop the certification of the election on Jan. 6 as part of his role as vice president.
Mr. Trump warmed to the idea. In his speech at the Ellipse by the White House on Jan. 6, he said Mr. Eastman “is one of the most brilliant lawyers in the country.”
“I hope Mike is going to do the right thing,” Mr. Trump said. “I hope so. I hope so. Because if Mike Pence does the right thing, we win the election.”
Ms. Cheney in her statement at the opening hearing last week said the committee will provide evidence in a coming hearing that Mr. Eastman “did not actually believe the legal position he was taking.”
The Justice Department has taken action on a few criminal referrals made by the select committee related to witnesses who refused to testify. Federal prosecutors charged former Trump strategist Steve Bannon and White House economist Peter Navarro with contempt of Congress for defying subpoenas from the committee. The department said it wouldn’t bring contempt charges against Dan Scavino, Mr. Trump’s deputy chief of staff for communications, and the former president’s chief of staff, Mark Meadows.
Matthew Graves, the U.S. attorney in Washington, said in a short letter to the House general counsel that his office was declining to prosecute the two former advisers based on specific circumstances of their cases but declined to elaborate.
The Justice Department doesn’t need a criminal referral from Congress to investigate alleged wrongdoing, but there has been no public indication that its own Jan. 6 probe has moved to target Mr. Trump. Still, a referral from Congress would immediately thrust the Justice Department further into a political firestorm.
Congress has no power to bring any charges or initiate a criminal investigation. It can only call for the Justice Department to do so. Federal prosecutors would then need to independently weigh whether Mr. Trump’s actions in the aftermath of the election amounted to crimes.
No president has ever been prosecuted criminally, and some legal theories hold the president is immune for a variety of conduct while serving in office. Any prosecution of Mr. Trump for actions taken during his final days in office would raise legal questions about presidential immunities and powers that have never been definitively answered by U.S. courts.
Mr. Trump has publicly indicated that he might run again for office in 2024—meaning that any decision by the Biden administration’s Justice Department would insert it into presidential politics at the highest level. Justice Department rules also typically call for the appointment of a special prosecutor in cases that would pose a conflict of interest to the department.
A referral from the Jan. 6 panel would put further pressure on Attorney General Merrick Garland, who has sought to insulate the Justice Department from partisan interference after years in which Mr. Trump pressured the agency to prosecute political rivals and later to discredit the 2020 election. A referral could make it appear that Mr. Garland, if he moved to open a criminal case, was taking orders from Congress.
“We’re proceeding with full urgency to hold all perpetrators who are criminally responsible for Jan. 6 accountable, regardless of their level, their position and regardless of whether they were present at the events of Jan. 6,” Mr. Garland said Monday.
The Justice Department was also at the center of election-year politics in 2016, when it conducted parallel investigations of whether Hillary Clinton, a Democrat, mishandled classified information while she was secretary of state and whether Mr. Trump’s campaign had any ties to Russia.
