Will Donald Trump Face Charges Amid Jan. 6 Subpoena After Final Hearing?

After a summer of live, televised hearings and more than 1,000 interviews with key witnesses, the U.S House's January 6th Select Committee began closing arguments on whether former President Donald Trump and his administration was culpable in the first attacking on the U.S. Capitol since the War of 1812.

Thursday's anticipated two-and-a-half-hour hearing, according to media reports, largely focused on the former president's alleged effort to use the power of the mob to force his allies in Congress to overturn the result of the 2020 election in his favor, with the linchpin likely residing with a video clip showing Trump associate Roger Stone saying "F**k the voting, let's get right to the violence," prior to Election Day.

But the news of the day—that the committee planned to subpoena the former president about whether he was aware of the likelihood of violence ahead of the riot—introduced even more complications to what wasexpected to be the final public appeal of the group to the U.S. Department of Justice to bring Trump to justice for his alleged crimes, including obstructing an official proceeding of Congress, conspiracy to defraud the American people, and repeated lies about a stolen election it argued in a March 2022 court filing could amount to common law fraud.

"It is our obligation to seek Donald Trump's testimony," January 6th Select Committee Democratic co-chair Bennie Thompson of Mississippi said at the close of Thursday's hearing.

Whether Trump is charged with a crime is a different story.

While the Department of Justice (DOJ) has already brought hundreds of charges against rioters in what has amounted to the largest criminal investigation in the nation's history, such charges against a former president would be unprecedented, and are likely to be weighed with heavy discretion.

To date, the DOJ has issued subpoenas in the January 6 investigation to numerous members of Trump's inner circle—efforts Trump's attorneys have aggressively sought to block. Thompson has also said the committee planned to meet with federal prosecutors to deliver transcripts and other evidence gleaned from its investigation they believe could prove a direct effort by Trump and his administration to obstruct congressional efforts to certify the result of the 2020 election.

"I think it's time for the committee to determine whether or not the information we've gathered can be beneficial to their investigation," he said during a September 13 hearing in Washington.

While legal experts have said that Trump appeared guilty of crimes, the DOJ has wide discretion over whether or not to bring charges based on whether it feels it has a strong enough case against the former president to prove he actually did intend to use the violence of the mob to meet his political ends.

"What you would want to see is direct evidence that the president knew that violence would be used with respect to Congress, with respect to attacking the building," former federal prosecutor Andrew Weissman told NPR in July.

"Now, the Department of Justice may get there and may be able to show that, but that's the kind of thing that if I were a juror, and certainly if I were still in the Department of Justice, I would want to know, is there that direct evidence? Are there people who can talk about the president's scheme, what was said to him, what he said in response? That would be the ideal."

There are also political considerations. While Trump lost the popular vote in 2020 by over 7 million votes, his defeat in the Electoral College was 306 to 232. And January 6—particularly, the president's actions in that day's events—remains a divisive topic throughout much of the country.

And though some polling showed majority support for Trump to face charges, Monmouth University polling from August showed, after months of public hearings, just 38 percent of Americans believed Trump was directly responsible for the events of January 6. That same poll showed roughly six-in-ten Republicans believed Biden only won that year due to widespread voter fraud—a claim largely sowed by Trump's own, evidence-free assertions about the ballot.

Meanwhile, a Thursday analysis by ad-tracking firm AdImpact shows January 6 has been the subject of fewer than 2 percent of all broadcast television ad spending in House races this election cycle, while Democrats in battleground districts have largely declined to attack Republican opponents who voted not to certify the 2020 results.

But the key question for prosecutors, committee members say, is the implication of not charging the former president, which they say could embolden attempts to disrupt future elections by violent means.

Republican committee member and vice chair Liz Cheney said during the hearing that while lawmakers are pursuing legislative remedies to present future instances like those seen on Jan. 6, there is substantial cause to pursue testimony from the former president, noting more than 30 witnesses in the committee's investigation invoked their Fifth Amendment right against self-incrimination. Several of those, she added, did so specifically in response to questions about their direct dealings with Trump.

"Our duty today is to our country and our children and our constitution," Cheney said. "We are obligated to seek answers directly from the man who set this all in motion. And every American is entitled to those answers that we can act now to protect our republic."

Update: 10/13/22, 3:47 p.m. ET: This story was updated with additional information.