What Exactly is a Congressional Criminal Referral?

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?

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Applicability of Federal Criminal Laws to OCE Investigations

In one of his last opinions on the D.C. Circuit, Judge Griffith resolved another congressional case, United States v. Bowser, No. 18-3055 (D.C. Cir. June 30, 2020), albeit one less consequential than McGahn. David Bowser, a former chief of staff to Representative Paul Broun (R-Ga), was convicted of obstructing an investigation by the Office of Congressional Ethics (OCE) into whether Broun had improperly used funds from his “Members Representational Allowance” (MRA) to pay for campaign related expenses.  Specifically, OCE in 2014 launched an inquiry into whether a “messaging consultant” hired by Broun’s office had been paid out of the MRA for time spent on Broun’s congressional and senate campaigns.

In response to OCE’s preliminary review of these allegations, Bowser coached witnesses to provide false or misleading information to OCE, encouraged them to withhold responsive and relevant documents, and did the same himself. As a consequence, he was indicted and convicted of obstructing Congress, concealing material facts from OCE, and making false statements.

On appeal, there were two principal legal issues presented. First, the court addressed whether the obstruction of Congress statute, 18 U.S.C. § 1505, applies to OCE investigations. The statute applies to any investigation or inquiry by “either House, or any committee of either House or any joint committee of the Congress.” As the court noted (and the government conceded), this language on its face does not encompass OCE. It stressed that Congress knows how to draft statutes to cover offices such as OCE when it wishes to do so, contrasting the limited scope of § 1505 with the False Statements Act, which “applies to ‘any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.'” Bowser, slip op. at 8 (quoting 18 U.S.C. § 1001(c)(2)) (emphasis added by court).

The government argued, however, that OCE conducts investigations as an agent for the House and/or the House ethics committee. The court was not persuaded. It pointed out that the statute defines which “agents” it covers, i.e., committees and joint committees, and therefore other entities could not be covered simply because they act in some general sense as agents for one house or Congress as a whole. It also found that OCE’s functions under the House rules undercut the government’s argument because OCE merely has the limited power of conducting reviews and issuing recommendations to the ethics committee, which then determines whether to undertake the actual “investigation.”

Accordingly, the D.C. Circuit found the obstruction statute inapplicable to OCE’s inquiry and affirmed the district court’s grant of Bowser’s post-trial motion for acquittal on the obstruction charge.

The second major issue was Bowser’s claim that the district court should have also granted his motion for acquittal on the charge of concealment under the False Statements Act. While he did not dispute that OCE was an “office of the Congress” within the meaning of that statute, he argued there could be no concealment because OCE’s preliminary reviews are voluntary and therefore impose no duty on witnesses to disclose information. The court, however, held that a voluntary ethics investigation or review may impose a duty to disclose as long as witnesses are given fair notice of this fact. Under the circumstances of this case, Bowser was under such a duty because he had certified in writing that he had fully complied with OCE’s request for information and had been advised that his disclosure was subject to the False Statements Act.

Bowser is a fairly straightforward statutory interpretation case which is probably not all that interesting to anyone except lawyers who represent clients in House ethics matters. Its most immediate impact, I suspect, will be to give such lawyers cover for advising their clients not to cooperate voluntarily with OCE.

“We Refer a Lot of Things that Don’t Get Prosecuted”

So noted former congressman Tom Davis after Roger Clemens was acquitted on all charges stemming from his congressional testimony regarding alleged steroid use. Davis was explaining to the Washington Post why he did not believe the Justice Department was obligated to prosecute Clemens even though he and Representative Henry Waxman (respectively the ranking member and chairman of the Committee on Oversight and Government Reform at the time Clemens testified before that committee) had referred the matter to the Department for investigation.

As a technical matter, Davis is certainly correct. The Justice Department is not obligated to, and does not in fact, prosecute all cases referred to it by Congress. (Arguably, the Justice Department is obligated to present all congressional contempt cases referred under 2 U.S.C. ¶ 194 to a grand jury, but it doesn’t do that either).

In the case of a congressional perjury referral such as was made with regard to Clemens, I think it is safe to assume that the Justice Department conducted a thorough investigation of whether Clemens lied before Congress when he denied ever having used steroids. After conducting the investigation, it presumably reached an independent conclusion that Clemens was lying. It seems unlikely that the Department relied on the referral letter from Waxman and Davis, particularly since that letter states: “We are not in a position to reach a definitive judgment as to whether Mr. Clemens lied to the Committee. Our only conclusion is that significant questions have been raised about Mr. Clemens’s truthfulness and that further investigation by the Department of Justice is warranted.”

It is different matter with respect to the “congressional elements” of the charges, however. Although the referral letter does not explicitly address these questions, the Justice Department would have reasonably assumed from the fact of the referral itself that Waxman and Davis believed that Clemens’s testimony was “material” to a matter within the jurisdiction of the committee, and, of course, that the committee was a “competent tribunal” engaged in the “due and proper exercise of the power of inquiry.”

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Is Congress Competent?

Ok, that’s not exactly the question raised by attorneys for Roger Clemens in last week’s filing in federal district court, but I bet its how they hope the jurors interpret the question.

Technically, the issue that Rusty Hardin and company want jurors to consider is whether the House Committee on Oversight and Government Reform (COGR) was a “competent tribunal” when it questioned Clemens in 2008 about his alleged steroid use. They also want jurors to decide if COGR was engaged in “the due and proper exercise of the power of inquiry” and whether Clemens’s alleged false statements were made in a matter “within the jurisdiction” of the legislative branch.

According to the defense team, these competency elements all boil down to one basic inquiry: what was COGR’s purpose in calling Clemens to testify and with respect to the specific questions he was asked. Examples of improper purpose, they say, include:

  • Questioning a witness solely for a purpose other than to elicit facts in aid of legislation
  • Usurping the functions of a prosecuting attorney in the guise of a legislative investigation
  • Re-questioning a witness for the purpose of rendering him more liable to criminal prosecution
  • Conducting a hearing for an actual purpose different than a stated purpose
  • Directing an inquiry primarily to the witness’s guilt or innocence of a crime

To which the prosecution responds: go ahead, make my day. Rather than contesting the defense position on what types of competency issues may be presented to the jury, or pointing out the serious Speech or Debate/separation of powers problems that could result from a judicial inquiry into legislative motives, the government seems to concede the defense’s right to put COGR on trial.

Instead, the prosecution warns that if the defense exercises this right, the government must be permitted the opportunity to show the “broader context” of the congressional investigation. It says “if defendant thus calls into question the competency of the congressional tribunal by suggesting that the Committee was not acting with a proper legislative purpose, then the United States must be permitted to explain, among other things, the seriousness of the problem of steroids and other performance enhancing drugs, the national spotlight being cast on this problem, and the necessity for the congressional inquiry.” The defendant “cannot, on the one hand, impugn the integrity of the Oversight Committee by suggesting that its true- singular- motive was a perjury indictment of him, but, on the other hand, preclude the United States from explaining to the jury, for example, that the Committee’s investigative work was of national importance because of the wide-spread problem of steroid and other performance enhancing drug use in Major League Baseball.”

This strikes me as a dubious prosecution strategy. In the first place, I doubt that anyone is disputing the “seriousness of the problem of steroids and other performance enhancing drugs,” generally speaking. What is being questioned is the reason for calling a particular witness to a particular congressional hearing. I don’t think that Judge Walton will allow that to be the basis for inquiry into steroid use by other baseball players. Moreover, even if the court does allow it, I am not sure this is a good trade for the prosecution. Many jurors may be more concerned about Congress’s reasons for the investigation than they are about steroid use in baseball.

I also wonder about the more general implications of the prosecution’s apparent concessions. The government must prove that Clemens’s statements were material, and this means that they have to be related to a legitimate legislative purpose. But there also have to be limits on how far the parties can go into the actual motives of the COGR members, or otherwise every congressional perjury case will devolve into a political trial of Members of Congress. The prosecutors have not suggested, at least yet, what those limits might be.

Congressional Witnesses at the Clemens Trial

Needless to say, I don’t know exactly how the government plans to prove the “congressional facts” necessary to establishing its case against Roger Clemens. The government, however, has announced an intention to call two House witnesses, Charles Johnson (the former House Parliamentarian) and Phil Barnett (a long-time aide to Representative Henry Waxman, who chaired the COGR at the time that Clemens testified). They are clearly an important part of the government’s evidence with regard to the congressional facts.

The House Counsel’s office has filed a motion explaining to the court that it will be representing these witnesses at trial and may pose Speech or Debate or other objections to questions posed by either the prosecution or defense. This motion tells us a little bit about what they may testify to.

Johnson. The motion states that “[w]e do not anticipate, at this time, that Mr. Johnson will be questioned at trial by the prosecution about matters that are Speech or Debate protected or protected by other privileges.”  Presumably, therefore, Johnson will be testifying about his general knowledge and expertise on House rules and procedure. Thus, for example, he may explain how the House adopts its rules, forms committees and establishes areas of jurisdiction for each committee.

Johnson may also testify regarding COGR’s investigatory authority under the House Rules. Although House Rule X (1)(h) lists COGR’s specific areas of legislative jurisdiction (none of which would relate to the use of steroids in baseball), clause (4)(c)(2) provides that COGR “may at any time conduct investigations of any matter without regard to [rule provisions] conferring jurisdiction over the matter to another standing committee.” Referring to this provision could lead to an interesting legal/factual debate over what exactly it means. Does it mean that COGR can investigate anything under the sun? Does it mean that COGR can investigate anything that another committee of the House could investigate? (If so, one might ask whether COGR reported its “findings and recommendations” regarding the steroid investigation to another committee of jurisdiction, as required by clause 4(c) (2)). Or does it mean that COGR can investigate anything that relates to oversight of the federal government (which would not necessarily encompass the steroid investigation)?

Barnett. The House Counsel says that “Mr. Barnett will be questioned by the prosecution about matters that are Speech or Debate protected that are relevant to its case in chief. Mr. Barnett, in keeping with the position taken by the Committee itself, intends in general not to assert the privilege with respect to (i) matters relating to formal, public Committee investigatory activities concerning steroid use in Major League Baseball that are relevant to the prosecution’s case in chief, and (ii) questioning by the defense on cross-examination that is within the subject matter of the direct examination.”

Thus, while Johnson may help the prosecution establish that COGR had the authority/jurisdiction to conduct an investigation of steroid use in baseball, it will be up to Barnett to explain (1) why COGR chose to institute this particular investigation and (2) how Clemens’s statements and representations were “material” to any decision of COGR.

So what might Barnett testify to? First, he could explain COGR’s initial decision to hold hearings on steroid use in professional sports in 2005. Those hearings were intended in part to educate the public regarding steroid use and to spur the professional sports leagues, particularly Major League Baseball, to take stronger action against the use of these drugs by their athletes. While one might debate whether those purposes in themselves would be sufficient to justify the exercise of the congressional power of investigation, the 2005 hearings would seem to have a reasonable nexus to potential legislative activity. For example, during the 2005 hearings, Waxman pronounced himself “intrigued with the idea of one Federal policy that applies to all sports and all levels of competition from high school to the pros and that provides a strong disincentive to using steroids.” Moreover, there were two bills introduced in the House in 2005 to address the issue of steroids in sports.

Second, Barnett might explain Waxman’s decision to hold hearings in 2008 to focus on the Mitchell Report and whether certain individuals, including Clemens, had been truthful in denying steroid use to former Senator Mitchell’s investigators. According to a previous COGR filing in this case, these hearings were held “to investigate whether the Mitchell Report was accurate and credible, whether Major League Baseball would implement Mr. Mitchell’s recommendations, and whether Congress needed to legislate in this area.”

This may be a harder sell. If the purpose of COGR’s 2008 investigation were really to follow up on the Mitchell Report and the earlier 2005 hearings, for example, one wonders why COGR’s oversight plan for the 110th Congress does not appear to express any intent to follow up in these areas. Moreover, even if there was a legislative purpose underlying the 2008 hearings, Barnett will need to explain how Clemens’s testimony was “material” to a committee decision related to that purpose.

It should be noted that Barnett’s direct testimony, according to House Counsel, will be limited to “matters related to formal, public Committee investigatory activities,” but will not include internal and confidential communications. It would seem to be somewhat difficult for Barnett to testify regarding “materiality” without disclosing information regarding the committee’s internal communications and decision-making processes since, by definition, “materiality” requires the jury to make a determination about whether Clemens’s statements influenced or had the capacity to influence those processes.

Finally, it is noteworthy that the prosecutors are not calling any current or former members of Congress as witnesses. These are presumably the witnesses who would be in the best position to testify both about whether COGR was engaged in the “due and proper exercise of the power of inquiry” and whether Clemens’s statements were “material.” Particularly in light of the public statements made by COGR members at the time of the 2008 hearings (calling into question whether the hearing was in fact a legitimate legislative exercise), the absence of any Members as witnesses could hurt the prosecution.

What Must the Clemens Prosecutors Prove About Congress?

AP notes that “Prospective jurors screened Thursday for the Roger Clemens perjury trial were more critical of Congress for spending time investigating drugs in baseball than they were of the star pitcher on trial for lying to lawmakers about ever using them.”  Having watched some of the jury selection yesterday, I can confirm this observation. One woman, a contracting officer for GSA, voiced her skepticism about Congress’s priorities and made a pointed reference to the lengthy delay in passing this year’s appropriations bills.

One interesting question will be how much of the trial focuses on Congress, rather than Clemens. In order to prove its case, the prosecution has to establish certain facts regarding the congressional proceedings in which Clemens allegedly made false statements.

The parties agree that for five of the six counts against Clemens (three for false statements, two for perjury), the government must prove that Clemens’s statements were “material.” This means that they “had a tendency to influence” or were “capable of influencing” a decision of the House Committee on Oversight and Government Reform (“COGR”). Thus, the prosecution must prove beyond a reasonable doubt that some decision of COGR was influenced or could have been influenced by these statements.

For the obstruction of Congress charge, the government must establish that COGR was engaged in the “due and proper exercise of the power of inquiry.” The government has not offered any jury instruction on this point, and it appears that the government may expect that this will be inferred from the fact that COGR is a committee of the House and was conducting a proceeding.

Clemens sees it differently. He has offered a jury instruction that explains what constitutes the “due and proper exercise of the power of inquiry.” The instruction states: “The ‘power of inquiry’ is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. A Committee of the United States House of Representatives does not have authority to expose the private affairs of individuals, nor does it have the power to attempt to resolve differences between two individuals by conducting a hearing unrelated to existing or potential legislation. A legitimate investigation must be related to, and in furtherance of, a legitimate legislative activity of Congress.”

In addition, for the false statements counts, the government must prove that the alleged false statement or representation “pertained to a matter within the jurisdiction of the legislative branch.” The government’s proposed instructions say that a matter is “within the jurisdiction of the legislative branch” if COGR “has the power to exercise authority in that matter. In this regard, there is evidence that [COGR] had the power to exercise authority in holding a hearing titled ‘Restoring Faith in America’s Pastime: Evaluating a Major League Baseball’s Efforts to Eradicate Steroid Use.’” This doesn’t quite say that the jury must find that the matter was within the jurisdiction of COGR as a matter of law, but suggests that the jury may infer jurisdiction from COGR’s undisputed status as a congressional committee.

Clemens’s instructions say that a matter is within “the jurisdiction of the legislative branch” if COGR “had the power to exercise its authority as it did in this matter.” It goes on to repeat the admonition that the power of inquiry, though broad, is not unlimited, and does not include exposing private affairs or resolving differences between individuals unrelated to existing or potential legislation.

Finally, Clemens would instruct the jury that the government must prove the oath was taken before a “competent tribunal.” He would further instruct the jury that a “competent tribunal” is one that is acting within the same parameters as previously defined for “the due and proper exercise of the power of inquiry” and “the jurisdiction of the legislative branch.”

Although the perjury statute (18 U.S.C. 1621) requires that the defendant have taken an oath before a “competent tribunal, officer, or person,” the government’s instructions presume that COGR qualifies as a matter of law.

Thus, the parties will argue before Judge Walton regarding exactly what the jury needs to find with regard to Congress and how it should be instructed. But, at a minimum, the prosecution will have to establish materiality for all of the counts besides obstruction. It also seems that the prosecution will have to put on some evidence that COGR had the authority to hold a hearing regarding steroid use in baseball.

How might the government go about establishing these elements? I will look at that in my next post.