“Generally speaking, omissions aren’t crimes,” said David Alan Sklansky, a law professor and co-director of the Stanford Criminal Justice Center. “But they can be crimes when somebody has a particular duty. So, if you’re talking about an officer of the United States, who has a duty and fails to perform that duty, and the failure to perform that duty causes interference with Congress’s ability to carry out its job, that could be a crime.”
The committee could also pursue cases such as lying under oath, intimidating a witness or contempt of Congress for witnesses who stonewall its subpoenas. Already the House has voted to send two contempt of Congress referrals to the Justice Department for Mr. Trump’s former chief strategist, Stephen K. Bannon, and his former chief of staff Mark Meadows.
A grand jury has indicted Mr. Bannon, but has not yet made a decision about Mr. Meadows’s case.
What about dereliction of duty?
Ms. Cheney said this weekend that she believed Mr. Trump was ethically and morally derelict in his duty on Jan. 6 as he delayed for hours before issuing a video calling off the mob violence.
“One of the things the committee needs to look at,” Ms. Cheney said on ABC’s “This Week,” “is whether we need enhanced penalties for that kind of dereliction of duty.”
Key Figures in the Jan. 6 Inquiry
Card 1 of 10The House investigation. A select committee is scrutinizing the causes of the Jan. 6 riot at the U.S. Capitol, which occurred as Congress met to formalize Joe Biden’s election victory amid various efforts to overturn the results. Here are some people being examined by the panel:
Donald Trump. The former president’s movement and communications on Jan. 6 appear to be a focus of the inquiry. But Mr. Trump has attempted to shield his records, invoking executive privilege. The dispute is making its way through the courts.
Mark Meadows. Mr. Trump’s chief of staff, who initially provided the panel with a trove of documents that showed the extent of his role in the efforts to overturn the election, is now refusing to cooperate. The House voted to recommend holding Mr. Meadows in criminal contempt of Congress.
Scott Perry and Jim Jordan. The Republican representatives of Pennsylvania and Ohio are among a group of G.O.P. congressmen who were deeply involved in efforts to overturn the election. Mr. Perry has refused to meet with the panel.
Phil Waldron. The retired Army colonel has been under scrutiny since a 38-page PowerPoint document he circulated on Capitol Hill was turned over to the panel by Mr. Meadows. The document contained extreme plans to overturn the election.
Fox News anchors. Laura Ingraham, Sean Hannity and Brian Kilmeade texted Mr. Meadows during the Jan. 6 riot urging him to persuade Mr. Trump to make an effort to stop it. The texts were part of the material that Mr. Meadows had turned over to the panel.
Steve Bannon. The former Trump aide has been charged with contempt of Congress for refusing to comply with a subpoena, claiming protection under executive privilege even though he was an outside adviser. His trial is scheduled for next summer.
Michael Flynn. Mr. Trump’s former national security adviser attended an Oval Office meeting on Dec. 18 in which participants discussed seizing voting machines and invoking certain national security emergency powers. Mr. Flynn has filed a lawsuit to block the panel’s subpoenas.
Jeffrey Clark. The little-known official repeatedly pushed his colleagues at the Justice Department to help Mr. Trump undo his loss. The panel has recommended that Mr. Clark be held in criminal contempt of Congress for refusing to cooperate.
John Eastman. The lawyer has been the subject of intense scrutiny since writing a memo that laid out how Mr. Trump could stay in power. Mr. Eastman was present at a meeting of Trump allies at the Willard Hotel that has become a prime focus of the panel.
Ms. Cheney was not suggesting a specific charge of “dereliction of duty” against Mr. Trump, her spokesman said. Rather, she thinks the committee should explore whether to recommend changes to current laws that could hold a future president accountable. She also wants the public to be aware of how Mr. Trump waited hours before calling off the mob, according to her office.
Why is the committee looking for criminality? Isn’t that the Justice Department’s role?
While pursuing criminal charges is the role of the Justice Department, the committee’s robust staff means it could uncover evidence as it does its work. With more than 40 staff members, including former federal prosecutors carrying out the investigation, the panel has interviewed more than 300 witnesses and obtained more than 35,000 documents.
“If they find evidence of something that they think is a crime and they think the Department of Justice should consider prosecuting, it seems to me completely appropriate for them to call it to the attention of the Department of Justice,” Mr. Sklansky said.