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Updated December 19, 2022 at 6:18 p.m. EST|Published December 19, 2022 at 5:00 a.m. EST
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The House Select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol recommended on Monday that the Justice Department pursue charges against Donald Trump for his role in attempting to overturn the results of the 2020 presidential election. The vote marked the first time Congress has made this kind of referral for a former president.
Members of the committee urged federal prosecutors to charge Trump with four crimes: inciting or assisting an insurrection, obstruction of an official proceeding of Congress, conspiracy to defraud the United States and conspiracy to make a false statement.
Here’s what to know about criminal referrals — how they work, and their powers and limitations.
What is a criminal referral?
While Congress has investigatory and subpoena powers, the legislative body does not have the authority to prosecute anyone. So when Congress wants to charge someone, members make a referral to the Justice Department, essentially calling on the federal law enforcement agency to investigate a matter or prosecute someone.
“A referral really just means that one part of the government is sending to the executive government information and requesting that the Department of Justice investigate these matters,” said Stephen A. Saltzburg, a law professor at George Washington University.
Does the Justice Department have to act on the referral?
A criminal referral is merely that: a referral. The Justice Department does not have to act on it.
In this case, the Justice Department is already well into its own investigation of the actions of Trump and many in his orbit related to the storming of the Capitol and efforts to use fake electors and other mechanisms to overturn the results of the 2020 election. FBI agents and Justice Department prosecutors are compiling and evaluating evidence from scores of subpoenas, grand jury testimony and witness interviews as they explore potential charges.
In other words, the Justice Department could opt to charge Trump and his allies in relation to Jan. 6, or not, independent of any congressional referral.
No former U.S. president has ever been charged with a crime, and the Justice Department would undoubtedly want to believe it had an airtight case before charging Trump.
Does a criminal referral hold more weight if it is issued by Congress?
Legally speaking, no. But Daniel Richman, a law professor at Columbia University, said the Justice Department would probably take a criminal referral from a congressional committee more seriously than it would referrals from elsewhere. Technically, anyone can submit a criminal referral to the Justice Department, even if it’s not done in a formal manner, Richman said.
“A criminal referral from Congress as a matter of legal doctrine does not carry that much more legal weight than from an ordinary citizen,” he said.
So what is the point of them?
Criminal referrals increase public awareness that the committee believes the former president or members of his inner circle broke the law. As a result, the referrals could put more pressure on prosecutors to ultimately press charges, according to Richman. And, he said, they could serve to hold the Justice Department accountable if prosecutors on their own are not inclined to consider charges.
“One of the purposes of a referral is that if you think there is a crime, it puts some accountability on the prosecutor’s decision on whether to charge or not,” Richman said. “It’s an accountability-shifting device.”
The referrals could also give Trump new ammunition for his frequent claims that the Justice Department’s investigations of him are politically motivated. Most members of the committee are Democrats; the two Republicans have been leading Trump critics. Trump therefore could use the referrals to bolster his claims that any Justice Department action against him is suspect.
At the hearing Monday, Rep. Bennie G. Thompson (D), who chairs the house select committee , said he hopes their work would “provide a roadmap to justice.”
Did the committee make any other criminal referrals Monday?
The panel also referred conservative lawyer John Eastman and “certain other Trump associates" to the Justice Department. Eastman has been cited as the legal architect for Trump’s effort to overturn the 2020 election.
In a statement from his lawyer, Eastman condemned the committee’s referral as “absurdly partisan” and criticized the committee for, as he saw it, attempting to play “pretend prosecutors designed to create political advantage for the Democratic Party and stigmatize disfavored political groups.”
Is the committee providing Justice Department prosecutors all the evidence they need?
Not necessarily. Congressional committees do not need to meet the same evidentiary threshold to make a referral as prosecutors need to bring forth a case. Although the committee publicly aired some of the evidence it has about who was responsible for the Capitol riot and efforts to overturn the election results, it has not yet released all of its interview transcripts and material.
It remains to be seen how much of that information — which the Justice Department has asked to see — will be included in the final report. Committee members have agreed to make all evidence and transcripts of depositions publicly available at some point, according to people familiar with the deliberations who spoke on the condition of anonymity in order to discuss the conversations.
Richman said that just because Congress makes a referral does not mean prosecutors will see enough evidence to bring forth a case.
Are these referrals like the contempt of Congress referrals previously issued for former Trump administration officials?
The Justice Department charged Bannon and Navarro but declined to pursue contempt of Congress charges against Scavino and Meadows, both of whom had privilege claims that could have made prosecution more difficult. In addition, Meadows cooperated with the committee initially.
Technically, these are the same types of referrals that Congress is expected to make this week. But Richman said contempt of Congress charges are fairly straightforward, and he expects the referrals made to the Justice Department this week to require more complex investigations.
“It would involve putting a whole lot more facts together and making a whole lot more inferences from those facts,” Richman said. “The contempt cases were cut and dry.”
What are some past examples of Congress issuing criminal referrals?
There have been a number of criminal referrals from Congress in the Trump era alone — though not of a former president. Washington Post colleague Philip Bump outlined some of those in an article today.
In January 2018, for example, Republicans on the Senate Judiciary Committee sent a criminal referral to the Justice Department focused on Christopher Steele, the author of the dossier of reports about Trump and Russia. Steele was not charged.
In February 2019, two Republican members of Congress issued a criminal referral about Trump attorney Michael Cohen, alleging that he’d perjured himself in testimony in front of Congress. Cohen served time after pleading guilty to financial crimes and campaign-finance violations.
And in 2020, the Republican and Democratic chairmen of the Senate Intelligence Committee told the Justice Department that they suspected several people, including Trump’s family members and confidants, might have provided misleading testimony around the investigation of Russian interference in the 2016 election. No criminal charges appear to have resulted directly from that communication.“