For the first time in the presidential history of the US, Donald Trump will be the first president to be conducted to a criminal referral - if the House January 6 committee decides to go through with it. 

As the committee contemplated the decision on Thursday, Trump may be subject to a criminal referral to the Justice Department on the basis of obstructing an official proceeding of Congress and conspiring to defraud the US. The recommendations from a special subcommittee stem from a series of examining collected evidence proving Trump's attempts to block the certification of the 2020 election results.

It is worth noting that the reason why this move could be symbolic is that Congress has no ability to compel prosecutions by the Justice Department.

This comes as next Monday will witness even higher tensions when the panel is due to publicly vote to conclude its report and formally decide on the referrals, thus exerting more pressure on the attorney general, Merrick Garland, to press charges.

'Coup in search of a legal theory'

Obstruction of an official proceeding is one of the referrals as a result of his attempt to block the certification pertaining to the 2020 elections, especially doing so with a “consciousness of wrongdoing” - indicating intent. The referral for conspiracy to defraud the US comes on the basis of violating the statute prohibiting entering into an agreement to impede a lawful governmental function in bad faith.

Related News

Trump facing new indictment in election subversion case

US Supreme Court corruption: From Beyonce tickets to Bali hotel stays

The conspiracy charge points to Trump's plan to have former VP Mike Pence reject Biden's slates of electors and replace them with Trump slates that did not actually exist as deceitful.

Trump and lawyer John Eastman were ruled by US district court judge David Carter in California to have devised a “coup in search of a legal theory,” and Eastman, on his part, was ordered to give in his most sensitive emails. In this case, the attorney-client privilege does not apply since the crime-fraud exception trumps it.

Emails exhibited Eastman's admittance of knowing that Pence's interruption of US President Joe Biden's certification on January 6 was against the law and still called for Pence’s counsel Greg Jacob to go ahead with the move anyway. The subcommittee also suggested the disbarment of a few of Trump's lawyers.

Fake electors scheme

The select committee is comprised of investigative lawyers who previously worked as federal prosecutors and who are currently carrying out more than 1,000 witness interviews while overseeing and analyzing documents and communications from Trump’s confidantes.

Still, the Justice Department has the choice to either accept taking on the criminal referrals or may have other methods of going about it. An abundance of Trump advisors and election officials have already received subpoenas to testify before a number of federal juries in Washington in regard to the Capitol attack. 

The subpoenas demand officials to submit all communications that involve Trump and his campaign from June 2020 to January 2021, as part of the investigations into Trump’s so-called fake electors' scheme. 

In recent events, US Representative David Cicilline of Rhode Island suggested a legislative act, on the basis of the 14th amendment on Thursday, to ban Trump from taking office in the future. In the 14th amendment, section 3 conveys that any former president who previously took an oath to support the Constitution and became involved in an “insurrection or rebellion” shall not “hold any office, civil or military, under the United States.”

Cicilline recalled during his announcement of the legislation, supported by 40 House Democrats, that Trump "very clearly" engaged in the infamous Capitol riots and insurrection on January 6, 2021, in an attempt to overturn the outcome of the 2020 presidential election. 

“You don’t get to lead a government you tried to destroy,” Cicilline said, adding that the bill holds testimony and evidence exhibiting Trump's prominent role on that day. It also demonstrates the ways in which Trump incited violence and tried to intimidate state and federal officials when no support was shown for his false claims of the election being rigged.