Jan. 6 Committee criminal referrals of Trump are political 'theater,' DOJ likely to 'ignore' say legal experts

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Jan. 6 Committee refers Trump to DOJ for criminal prosecution

"The Story" welcomes Fox News senior congressional correspondent Chad Pergram as he breaks down the latest on the January 6 Committee's final meeting on former President Trump.

Legal experts say that the House January 6 Committee's criminal referrals of former President Donald Trump to the Justice Department for his involvement in the 2021 Capitol protests are "theater" and will likely be ignored by the DOJ, and they could possibly have a counterproductive effect should the DOJ decide to bring charges.

The Jan. 6 panel held what is expected to be their final meeting Monday and voted unanimously to issue criminal referrals to the DOJ on Trump for obstructing an official proceeding of Congress, conspiracy to defraud the federal government, making a false statement, and inciting, assisting or aiding and comforting an insurrection.

The committee’s unprecedented criminal referral holds no official legal weight, and a final determination in whether to pursue the charges will be up to Attorney General Merrick Garland.

Fox News contributor Andy McCarthy, former federal prosecutor, called the referrals "theater" since they don’t have any legal binding. He believes the DOJ will "ignore" the referrals for that reason and because they could be a prosecutorial liability in the DOJ’s ongoing probe into Trump.

The House January 6 committee voted unanimously to issue criminal referrals to the DOJ on former President Donald Trump. (AP Photo/Patrick Semansky/File)

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"In effect, it is theater because there it doesn't have any binding effect," McCarthy said in an interview with Fox News Digital. "I think the Justice Department will ignore it."

"The concern that the Justice Department has, or at least should have, is that they [the criminal referrals] can have the counterproductive effect of undermining whatever prosecution, if any, that the Justice Department decides to bring because they give former President Trump the ability to make the claim, if he's charged, that the charges are the result of political pressure rather than evidence," McCarthy added.

"Even if they brought criminal charges that were based solely on evidence that they believed was reliable, they would still have to combat an argument in the trial that a heavily dominated Democratic committee induced the Democratic Justice Department to bring criminal charges in order to sideline the sitting Democratic president’s likely rival in the 2024 election, which is not a position to want to be in as a prosecutor," McCarthy said.

Fox News contributor Jonathan Turley, another former prosecutor and professor at Georgetown University Law School, said Monday’s business meeting that was heavily choreographed "missed the mark" in an effort to present a case that Trump should be criminally charged.

The House January 6 committee will release its final report on Wednesday. (Drew Angerer/Getty Images)

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"The failure of the committee to offer any new and direct evidence of criminal conduct was telling," Turley said. "The fact is that the [January] 6 Committee failed to change many minds largely because of what was on display in the final public meeting. It was the same highly scripted, one-sided account repeated mantra-like for months."

"There is justifiable anger over these accounts, but this hearing was billed as presenting the case for criminal charges. It missed that mark by a considerable measure," Turley added.

Jonathan Turley says January 6 Committee members like Rep. Adam Schiff, above, "repeatedly promised that the next hearing" would reveal "bombshell evidence" against Trump "only to have the same rehashing of the prior claims for prosecution." (AP Photo/Patrick Semansky/File)

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Turley also criticized the mainstream media coverage of the committee’s activity, saying that coverage "downplayed the flaring failure" of the committee to produce promised "bombshell evidence of a criminal conspiracy by Trump."

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"Members like Rep. Adam Schiff … repeatedly promised that the next hearing would reveal such direct evidence only to have the same rehashing of the prior claims for prosecution."

The committee's final report of its findings will be released on Wednesday.