The January 6 committee is toying with asking the DOJ to prosecute Trump for obstruction of Congress

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The January 6 committee is toying with asking the DOJ to prosecute Trump for obstruction of Congress
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  • The Jan. 6 select committee is considering asking the DOJ to prosecute Trump for obstruction of Congress.
  • NYT reported that investigators are also looking for evidence that other Republicans engaged in wire fraud.

The House select committee investigating the January 6 Capitol riot hasn't shied away from pursuing criminal charges against former White House officials, former Justice Department officials, and potentially even fellow members of Congress.

Now, the select panel is considering going after its biggest fish yet: the former president who's been accused of inciting the deadly insurrection.

Rep. Adam Kinzinger, one of two Republicans on the bipartisan committee, confirmed over the weekend that the panel is investigating if Donald Trump committed a crime related to the Capitol riot.

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And this week, The New York Times reported that House investigators are specifically looking into if Trump and his allies engaged in obstruction of Congress via their efforts to stop the chamber from certifying Joe Biden's 2020 election victory.

According to the report, the select committee is also looking into whether there's evidence that Republicans who raised money off bogus claims of election rigging engaged in wire fraud.

It marks an aggressive new phase in the January 6 select committee's months-long investigation into the Capitol riot and the events surrounding it. But it also poses new challenges for House investigators.

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Although they've made criminal contempt referrals for key Trump associates who refused to comply with subpoenas — like former White House chief strategist Steve Bannon, former chief of staff Mark Meadows, and former Justice Department official Jeffrey Clark — requesting criminal charges against a former president is a whole other animal.

A criminal referral from Congress is warranted when the "alleged crime is against Congress itself," like contempt, or if "Congress has unearthed possible crimes about which DOJ may not be aware," the former federal prosecutor Randall Eliason noted on Tuesday. "Neither is true here. A referral is a bad idea."

Another former Justice Department official echoed that view, telling Insider there's "not a chance" the department will move forward with criminal charges in the event that Congress makes a referral.

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Attorney General Merrick Garland "is still ruminating about the various straight forward contempt charges," the former official added. "He doesn't have the appetite to indict a former president."

Trump's actions before, during, and after the riot have been extensively documented, both through his public remarks and media reporting. In addition to hyping a "Save America" rally that took place near the Capitol before the insurrection, during which Trump urged thousands of his supporters to "fight like hell" against Biden's victory, the president also watched the violence play out on television and ignored pleas from advisors to call off his supporters as they stormed the Capitol.

In the months since, Trump has doubled down on his election malfeasance claims and downplayed the violence at the Capitol. "W​hat happened on January 6 was a protest against a rigged election, that's what it was," Trump said Sunday in Dallas while appearing on a tour with the former Fox News commentator Bill O'Reilly. "This wasn't an insurrection."

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It's unclear what, if any, new evidence the House select committee may have uncovered in its investigation that hasn't already been reported.

But Wyoming Rep. Liz Cheney, the vice chair of the panel, recently hinted that it's ready to move forward with a possible referral for Trump.

"We know hours passed with no action by the president to defend the Congress of the United States from an assault while we were trying to count electoral votes," Cheney said at a news conference. "Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress's official proceeding to count electoral votes?"

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Trump, for his part, has already asked the courts to step in and block the Jan. 6 committee's investigation.

But the Washington, DC, Circuit Court of Appeals rejected Trump's bid, saying in a blistering 68-page opinion that while the court recognizes the constitutional protections of executive privilege, the power "should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself."

A spokesperson for Trump did not immediately respond to a request for comment.

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