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- The Jan. 6 panel's first eight hearings focused on Trump's efforts to overturn the 2020 election.
- But legal experts are mixed on whether the evidence will lead to criminal charges against Trump.
- A recent poll suggests Americans are also evenly divided on if they think Trump should be indicted.
The House Select Committee investigating the January 6 Capitol attack has presented copious amounts of evidence highlighting former President Donald Trump's efforts to overturn the 2020 election. Throughout eight public hearings over the course of six weeks, a slew of witnesses have offered bombshell testimony that has gripped the nation and set Trump on edge.
The committee's investigation serves several purposes — experts cited accountability for the insurrection; a reinforcement of the country's commitment to democracy; and the creation of a vital historical record all as plausible functions.
But the average American, unconcerned with questions of DC legacy, is likely wondering one thing: Could Trump be criminally charged at the committee's conclusion?
It's a tricky question and one on which experts are mixed.
The panel, itself, has yet to decide whether it will issue a criminal referral to the Justice Department. The act has no concrete legal effect but serves as a symbolic measure to notify the agency of the possibility of criminal conduct uncovered by the investigation. Earlier this month, Rep. Liz Cheney, who serves as vice-chair of the committee, said the panel could potentially make multiple criminal referrals, including one against Trump.
But Matthew Schmidt, an associate professor of national security and political science at the University of New Haven, told Insider that he thinks the likelihood of Trump facing legal consequences is "virtually nil."
"First, because the legal standard to be able to convict him is too high, and too unprecedented to be a sure thing," he said. "Second, the political risk of even trying to convict a former president is too high."
Trump's frequent teasing at a possible 2024 presidential run adds another wrinkle to possible charges, Schmidt said. The former president told his allies recently that part of the draw of holding the nation's top seat again would be the legal immunity it provides, according to a Rolling Stone report published earlier this month.
"Trump running again effectively precludes any prosecution," Schmidt said.
Asher Hildebrand, an associate professor of the practice at Duke University's Sanford School of Public Policy, has a different take.
"The Committee's evidence of Trump's criminal liability has been so compelling that it would be shocking, in one sense, for the Department of Justice not to act," he told Insider. "But ultimately, the Department of Justice pursuing criminal charges against a former President is as much a political decision as a legal one, and it remains to be seen whether it is a decision Attorney General Garland will be willing to take."
Americans themselves, seem to be similarly split on whether they think the former president should face criminal charges for his role in the attack. An NPR/PBS NewsHour/Marist National Poll from earlier this week found that about 50% of people think Trump should face legal consequences. But only 28% of respondees said they think that is the most likely outcome.
The choice to charge Trump will ultimately fall to Attorney General Merrick Garland who will have to weigh the optics of indicting a former president in a politically polarized country, Robert Weisberg, a criminal law professor at Stanford University said. But even if Garland does conclude that he has a potentially winnable case, he could still forgo charges, thanks to prosecutorial discretion.
"Maybe people will think he shouldn't make that decision, but he has the legal power not to prosecute even if he has a legal basis for prosecution," he added.
The Department of Justice is not the only law enforcement authority currently investigating Trump, and the former president could still face criminal charges from a slate of other venues, Hildebrand pointed out.
"But a federal indictment would be a uniquely powerful deterrent not only against any attempts by Trump to subvert future elections but also against attempts by other elected officials to overturn the will of the voters," he said.
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