As discussed in my last post, the January 6 select committee has argued in federal court that there is sufficient evidence of misconduct by former President Trump to potentially warrant application of the crime/fraud exception to attorney-client privilege with respect to otherwise privileged communications he may have had with John Eastman. This in turn has sparked renewed speculation as to whether the committee will or should make a “criminal referral” to the Justice Department regarding the former president. According to this Politico article, while “Washington has viewed the decision on a criminal referral against Trump as a major pivot point in the Jan. 6 probe,” some think that the committee’s filing in the Eastman case makes such a referral less important or entirely unnecessary.
But what exactly is a congressional “criminal referral” and what is its significance, if any?
To answer this question, let us divide congressional referrals into three categories. The first consists of referrals that have a recognized status under law or congressional rules. To my knowledge the only such referral provisions are the criminal contempt statute (2 U.S.C. § 194) and the House and Senate rules governing their respective ethics committees. Each of these provisions specifies a method by which the referral occurs. In the case of criminal contempt, this involves a report by the committee before which the contempt occurred (adopted by a vote of the committee) and a subsequent vote by the full legislative body to accept the report and refer it to the U.S. attorney for presentment to the grand jury. In the case of the House ethics committee, there must be a vote by two-thirds of the committee (House Rule XI(3)(a)(3)) to report “to the appropriate Federal or State authorities” any “substantial evidence” of violations of law within its investigatory jurisdiction. The Senate ethics committee may, “by a majority vote of the full committee, report violations of any law, including the provision of false information [to the committee], to the proper Federal and State authorities.” (S. Res. 338, Subpart A, Sec. 2(a)(6)).
As readers of this blog are aware, the political branches disagree as to the effect of a criminal contempt referral. Relying on the statutory language that the U.S. attorney “shall” present the matter to the grand jury, Congress has long maintained that presentment is legally required. The Justice Department, on the other hand, argues that this language does not (and at least in some cases constitutionally could not) deprive the U.S. attorney of customary prosecutorial discretion to decline to present the matter.
Referrals from the congressional ethics committees do not (I think everyone would agree) trigger any legal obligation on the part of federal or state authorities, who could in theory ignore them if they chose. However, given the rarity of ethics committee referrals and their institutional imprimatur, I suspect they would ordinarily trigger at least some investigatory steps by law enforcement, though that by no means suggests that a prosecution will ensue. (The Senate ethics committee referral of former Senator John Ensign illustrates both points).
The second category of referrals relates to crimes against Congress, such as perjury, false statements, or obstruction. Unlike the first category, there is no recognition of such referrals in either law or congressional rules. From a legal standpoint, they would seem no different than a complaint filed by any citizen or crime victim. However, in 2016 testimony before Congress, FBI Director James Comey explained that in practice the FBI will not investigate these types of crimes without a congressional referral or complaint. In response to a question as to why the FBI had not investigated allegedly false congressional testimony by Secretary of State Hillary Clinton, Comey replied:
Well, we, out of respect for the legislative branch being a separate branch, we do not commence investigations that focus on activities before Congress without Congress asking us to get involved. That’s a longstanding practice of the Department of Justice and the FBI. So we don’t watch on TV and say: We ought to investigate that. You know, Joe Smith said this in front of the committee. It requires the committee to say: We think we have an issue here. Would you all take a look at it.
Oversight of the State Department, Hearing Before the House Comm. on Oversight and Government Reform, 114th Cong, 2d sess., 62-63 (July 7, 2016).
It should be noted here that Comey did not refer to any written policy or procedure regarding such congressional referrals and to my knowledge none exists. It is therefore difficult to say whether this “longstanding practice” represents a firm FBI/DOJ rule (which is how Comey presented it), a less absolute guideline, or just Comey’s personal observations about how things have worked in his experience.
Whatever the exact nature of this practice, it seems to me that there are two possible justifications for it. The first would be that Congress is the best judge of whether it has been the victim of perjury or obstruction and, as Comey suggested, that it might improperly encroach on congressional turf for the executive branch to launch an investigation of such matters without any indication that Congress has been aggrieved. The second would be that proving such crimes involves elements, such as materiality, which would be difficult if not impossible to prove without congressional cooperation (including possibly waiver of the Speech or Debate privilege).
Another element of uncertainty is exactly what Comey meant by a request or referral from “Congress” or “the committee.” At least one longtime congressional observer, Don Wolfensberger, has suggested that Comey was referring to formal action by the committee as a whole, presumably reflected in a majority vote. However, Wolfensberger does not cite any examples of such formal referrals, instead pointing critically to two examples where referrals were made by committee chairs alone or with only another member of the same party. (One of these examples followed Comey’s 2016 testimony, when the Republican chairs of the House Oversight and Judiciary committees sent a referral letter to the U.S. attorney asking for an investigation into whether Hillary Clinton had lied to Congress.)
It does not seem to me that there is any requirement, on either the executive or legislative branch side, that congressional referrals be adopted by a committee vote; indeed, I am not sure that such votes are customary. In two famous (or perhaps infamous) instances where the Justice Department prosecuted congressional witnesses for false testimony, the referral letters (regarding Martha Stewart and Roger Clemens) were signed by the chairs and ranking members, but there is no indication in the letters that there was any actual committee vote, nor do the letters even purport to be from the committees rather than the signatories as individual members of Congress.
Whether or not such referral letters are necessary to prompt investigation of crimes committed against Congress, they do not impose any legal obligation on the executive branch to take any investigatory steps, much less to prosecute. See CRS Legal Sidebar 7/26/2016 (“the receipt of such a referral does not require the executive branch to take action”). Presumably law enforcement will look at least look at the evidence or information conveyed in the referral letter to determine whether additional action is warranted. One may surmise, in addition, that those letters which reflect bipartisan consensus and/or the views of senior and respected members are most likely to get respectful consideration.
Finally, there are referral letters regarding all other types of crimes. It is not unusual for members of Congress to ask for investigations of a variety of types of potential crimes or wrongdoing. Sometimes this may be based on public information that the member has just read about in the press; other times it may be based in whole or in part on information obtained in the course of oversight or other congressional work. As a general rule, one suspects these types of letters do not have much effect unless they provide significant information that was not already available to law enforcement.
A “criminal referral” from the January 6 committee regarding Trump would fall in this third category. Although one of the potential crimes might be obstruction of Congress, this is not the type of crime where the Justice Department is going to insist on a congressional referral. (This is illustrated by the fact that January 6 rioters have been charged with obstruction without any congressional referral.) Unlike an obstruction charge relating to destroying evidence relevant to a congressional investigation, the charge of attempting to obstruct the electoral count transcends legislative branch interests and probably does not require congressional cooperation to prove.
A referral from the January 6 committee would be without legal effect, whether it is adopted by a committee vote or not. It might have some “symbolic” value, as Politico suggests, but I doubt it will be significant, given that the views of the committee members are well known. Thus, unless the committee has uncovered significant nonpublic information that the Justice Department does not have (beyond the fairly underwhelming evidence in the Eastman filing), the practical effect of a referral is likely to be limited.