Introduction to Criminal Referrals by Congress

Introduction to Criminal Referrals by Congress

Legal Sidebari

Introduction to Criminal Referrals by
Congress
December 20, 2022
Earlier this week, the Select Committee to Investigate the January 6th Attack on the United States Capitol
(Select Committee) unanimously reported its final investigative report to the House of Representatives.
Although the full report is not yet available, the Select Committee has released introductory material that
includes criminal referrals for former President Donald Trump and others for possible violations of 18
U.S.C. § 1512 (obstruction of an official proceeding), 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 1001
(false statements), and 18 U.S.C. § 2383 (inciting or aiding insurrection). According to the report’s
introductory material, “the facts found support further evaluation by the Department of Justice of specific
criminal charges.” The Select Committee also authorized Chairman Bennie Thompson to transmit all
supporting evidence relevant to the referrals to the Department of Justice (DOJ).
This Legal Sidebar will describe and define congressional criminal referrals; situate referrals within a
constitutional context; and discuss what standards, if any, guide their use.
Background and Process
Legislative investigations by congressional committees can be wide ranging and often directly or
indirectly involve issues of misconduct. As the U.S. Court of Appeals for the D.C. Circuit (D.C. Circuit)
recently noted, “[m]issteps and misbehavior are common fodder for legislation.” As a result,
congressional committees will occasionally come across evidence of a criminal offense in the course of
an investigation. When that occurs, committees have sometimes chosen to take that information and make
a “criminal referral” to the DOJ.
Although there is no established or accepted definition, a congressional criminal referral is a non-binding
communication to the DOJ, made either by a congressional committee or by individual Members of
Congress, that specifically articulates evidence supporting the possible commission of a crime and asks
the DOJ to either conduct further investigation or otherwise pursue the matter. While congressional
criminal referrals often involve offenses against Congress (for example, lying to Congress or obstructing
a congressional investigation), a committee can make a referral whenever an investigation has uncovered
evidence of possible criminal wrongdoing.
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The process by which committees or Members make criminal referrals to the DOJ is generally not
governed by federal statute or chamber rules. It is instead typically an informal, ad hoc process, largely
uninhibited by legal or procedural constraints, in which committees, committee chairs, or individual
Members of Congress make referral decisions based on the facts and circumstances of a given case. There
are two narrow exceptions to this general rule. First, criminal referrals by the ethics committees in the
House and Senate are governed by chamber or committee rules. Second, unlike other criminal offenses,
the criminal contempt of Congress statute (2 U.S.C. § 194) explicitly establishes a process for each
chamber to “certify” an offending witness directly to a U.S. Attorney. The criminal contempt of Congress
statute—which was enacted in 1857 as an exercise of Congress’s inherent contempt power—is unique,
and its certification process should be viewed as distinct from other referrals.
Constitutional Principles
Criminal referrals reflect the constitutional separation of powers. Congress is not a “law enforcement or
trial agency” and may neither itself, nor through its officers, directly enforce federal law. “Legislative
power,” the Supreme Court has held, “is the authority to make laws, but not to enforce them . . . .”
Congress has no power to bring its own criminal prosecutions for violations of federal law; the
Constitution reserves that authority for the executive branch. This circumstance is true even for criminal
offenses that protect the institutional prerogatives of Congress, such as contempt of Congress (2 U.S.C.
§ 192), perjury (18 U.S.C. § 1621), obstruction of a congressional proceeding (18 U.S.C. § 1505), and
false statements (18 U.S.C. § 1001). Instead, Congress generally must rely on the DOJ to vindicate
Congress’s institutional interests by prosecuting those that violate these criminal provisions.
A congressional criminal referral does not, and likely cannot, require the DOJ to initiate a prosecution.
There are several constitutional reasons for this.
First, criminal referrals do not comply with bicameralism and presentment and therefore cannot have the
force and effect of law. In INS v. Chadha, the Supreme Court held that if Congress wishes to create “legal
rights” or obligations, it must do so in the “finely wrought” process established in Article I of the
Constitution: passage by both chambers of Congress and presentment to the President. Criminal referrals,
which are not presented to the President and are typically not approved by either chamber of Congress, let
alone both, do not comply with this constitutionally mandated process and therefore cannot have binding
legal effect.
Second, in describing the executive’s law enforcement power, the Supreme Court has suggested that “the
Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a
case . . . .” Initiating a criminal prosecution, the Court has reasoned, is within the “special province of the
executive branch” and at the heart of what is known as “prosecutorial discretion.” While Congress can
confine the exercise of that discretion in a variety of ways, enacting a binding legislative measure that
purported to substitute Congress’s prosecutorial determination for that of the executive’s may raise
constitutional concerns.
For these reasons, criminal referrals do not force the DOJ to take prosecutorial action. They may,
however, influence DOJ decisionmaking and, therefore, should not be treated as a wholly symbolic act.
This is true for several reasons. First, if the referral is formally approved by a committee or a chamber of
Congress, it represents a reasoned determination of a component of the legislative branch of government
that should be accorded due respect. Second, a referral may present the DOJ with previously unknown
evidence uncovered through Congress’s own investigatory processes. Third, a thorough, publicly
available referral exposes evidence of possible wrongdoing, potentially resulting in substantial public (in
addition to existing congressional) pressure for the DOJ to act.

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Standard of Proof
In the judicial system, the burden of proof—or degree of certainty to which parties must prove their
allegations through the production of evidence—varies depending on the type of proceeding. In a criminal
trial the prosecutor must prove each element of a crime “beyond a reasonable doubt.” In civil litigation,
plaintiffs generally need only prove allegations by a “preponderance of the evidence.” Federal grand
juries use yet a different standard and may issue an indictment on a finding that there is “probable cause”
to believe that a crime has occurred.
There is no applicable standard of proof connected to a congressional criminal referral. Indeed, it does not
appear that a committee need be convinced that a crime has occurred at all to make a referral. It could, for
example, make a referral on the belief that further investigation by the DOJ may be warranted, perhaps
because the alleged conduct is tangential to the committee’s investigation; outside the committee’s
purview; or requires investigatory tools and resources not possessed by the committee. For example, in
the 116th Congress, the Senate Select Committee on Intelligence referred information to law enforcement
authorities “for whatever action it deemed appropriate,” expressing only that “crimes may have been
committed and that further investigation might be warranted.”
Given the discretion involved, congressional referrals have characterized the amount of evidence that
should trigger a referral in different ways. The Select Committee appears to have articulated a “sufficient
evidence” standard. A House Intelligence Committee chair referred a witness where the evidence
“strongly indicate[d]” a criminal violation; a past Senate Judiciary Committee chairman described his
committee’s practice of making referrals when it has “credible evidence of a criminal violation”; and the
House Ways and Means Committee has made referrals where it has “evidence that tends to show
intentional wrongdoing.” As noted, the House Rules impose a specific standard of proof for criminal
referrals from the House Ethics Committee. Under Rule XI, referrals are permitted when there is
“substantial evidence of a violation.”
Although there does not appear to be an explicit evidentiary burden that a committee (other than the
ethics committees) must meet to make a referral, the DOJ’s standard for opening an investigation is low.
According to Federal Bureau of Investigation guidelines, the standard for initiating an investigation
appears to be the existence of evidence that a crime “may have occurred.” Still, there are prudential
reasons that a committee may wish to provide as much evidence as possible with the referral. A referral
holds only the persuasive weight that the evidence contained within can bear. The greater the evidence of
misconduct a referral includes (and the more clearly the referral connects that evidence to each element of
a criminal offense), the easier (and possibly more likely) it is for the DOJ to act on the referral. That said,
the decision of whether to initiate prosecution is subject to the executive branch’s discretion, as informed
by a number of Justice Department policies.
Finally, it is possible that extreme cases of abuse of the referral process—for example, if a committee or
Member were to publicly make an entirely unsupported criminal referral with the intent of damaging the
target’s reputation—could raise ethical issues or possibly trigger civil claims for defamation, though the
latter would likely implicate congressional immunities under the Speech or Debate Clause.

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Author Information

Todd Garvey

Legislative Attorney

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