Rest assured that the politically fraught and not entirely coherent meanderings of a congressional committee’s ‘criminal referral’ will carry little if any weight.
Rest assured that the politically fraught and not entirely coherent meanderings of a congressional committee’s ‘criminal referral’ will carry little if any weight.
A s observed here last week, the bipartisan unity studiously projected by the January 6 committee’s seven Democrats and two Republicans quickly breaks down when the subject strays from whether Donald Trump is contemptible and condemnable (unanimous, emphatic yes) to questions of what to do about it.
So it was again Monday night, when a mini tempest broke out on Twitter over whether the committee would make a “criminal referral” to the Justice Department, alleging that former president Donald Trump is guilty of federal crimes.
First, the committee’s Democratic chair, Bennie Thompson, told CNN that the panel had ruled out making a formal referral. “That’s not our job,” Thompson elaborated. “Our job is to look at the facts and circumstances around January 6, what caused it and make recommendations after that.”
Not untypically of Thompson, that last bit was confusing. A “criminal referral” is a recommendation and nothing more. But the suggestion that the committee had already decided not to make a referral of Trump got up the hackles of Liz Cheney, the committee’s Republican vice-chair. Cheney promptly tweeted: “The January 6th Select Committee has not issued a conclusion regarding potential criminal referrals. We will announce a decision on that at an appropriate time.” This was not very edifying, either: No one thought the committee had “issued a conclusion,” since it hadn’t; but that wouldn’t necessarily mean the committee hadn’t been discussing the matter internally.
Enter committee Democrat Adam Schiff, who proceeded to tell CNN, “We haven’t had a discussion about that, so I don’t know that the committee has reached a position on whether we make a referral or what the referrals might be.” In previous referral situations, there have been committee votes to recommend to the full House proposals that various witnesses be held in contempt of Congress and referred to the DOJ for prosecution. Ergo, one assumes that the committee would at least internally discuss a criminal referral of Trump, and probably vote on it, before deciding whether to make such a referral.
In any event, to describe as “nothing” what all this ado is about would be to overstate it.
As noted above, a “criminal referral” is a recommendation by Congress that the Justice Department open an investigation of whether the referred person has committed a particular crime. I can assure you that it is far more meaningful to Congress than it is to the Justice Department. That goes for both whether a referral is made and what form it may take. Thompson’s meanderings notwithstanding, it makes no material difference to the DOJ whether a committee transmits a formal referral (“we believe Andy robbed the bank”) or instead issues a public report describing its conclusions (“An Investigation into the Awful Things Andy Did at the Bank”). It is just the communication of an accusation.
Why is it momentous to Congress but nigh irrelevant to the Justice Department? Because what makes a referral attractive to partisan lawmakers is the political damage it does to the person referred. That, of course, is the very thing that makes a good prosecutor suspicious of the motivation of the source and — hence — of the likelihood that the referral may be exaggerating or distorting the information it depicts as incriminating. (Almost like if, say, a partisan political campaign were to tell the FBI that the opposing candidate was a clandestine agent of Russia — not that anything like that would ever happen.)
Congress is limited to mere recommendations because criminal prosecution is an executive function. Under separation-of-powers principles, only the Justice Department has the power to charge a person with a crime (or, to put a finer point on it, to seek an indictment from a grand jury).
The political branches owe each other deference. Thus, a referral from Congress is going to get the Justice Department’s attention in a way that, say, the average person’s calling the FBI to report a possible crime may not. But that’s about it in terms of real significance. That’s why the New York Times, in reporting back in April that the January 6 committee might make a criminal referral of Trump, described such a referral as “a largely symbolic act.”
A good prosecutor will assume there is political motivation behind any congressional referral. It would be foolish not to: Note that, when voted on by the full House, the committee’s recommended referrals have so far resulted in straight party-line votes, with over 200 Republicans opposing — the only GOP yea votes coming from the committee’s two unabashedly anti-Trump Republicans, Cheney and Adam Kinzinger.
Also, despite the staff assistance they may get from experienced prosecutors (there are several working for the January 6 committee), congressional committees are not steeped in criminal law. The reporting on the basis for the January 6 panel’s assumption that sufficient evidence has been gathered to warrant a referral of Trump indicates that the committee’s grasp of the crimes at issue is tenuous.
And then there is the matter of comparative risk. In recommending charges, congressional partisans have everything to gain and nothing to lose. When they make provocative criminal allegations, they score political points, but no one expects them to prove their claims. It is the executive branch that bears the burdens of prosecution, grappling with complexities of the case and the fact that evidence sometimes writes more compellingly in a political referral than it plays out in the adversarial test of a criminal trial.
Further, the DOJ, unlike congressional committees, must go through a second layer of analysis in exercising prosecutorial discretion. Even if there may technically be a potential crime, the offense may not meet the DOJ’s standards, such that charging it would leave prosecutors open to charges of selective prosecution and politicized enforcement. Or there may be other public interests that weigh against charging — for example, bringing a weak or legally dubious case in an electoral context would intrude law enforcement into politics and invite payback when, eventually, the other party is back in power.
Because of these different and even conflicting motives and responsibilities, any competent prosecutor views congressional referrals with skepticism. And in this instance, there appear to be good reasons to be skeptical.
The above-cited April Times report said that January 6 committee members had already concluded “that they have enough evidence to refer Mr. Trump for obstructing a congressional proceeding and conspiring to defraud the American people.” In its recent hearings, the committee has indicated that it is putting great weight on a ruling in March by California federal district judge David O. Carter, a Clinton appointee who once sought elective office as a Democrat.
In a later post, I’ll have more to say about Judge Carter’s 44-page opinion and the peculiar process by which it came about. For now, suffice it to say that the decision is not from a criminal case. It came in the context of civil litigation over Trump lawyer John Eastman’s effort to block the committee from access to subpoenaed emails. These comprised communications about Trump’s legal strategy for overturning Biden’s election victory.
Eastman invoked the attorney–client privilege (ACP). As a result, one narrow question for the court was whether the so-called crime/fraud exception to the ACP applied. Under that exception, the ACP does not protect lawyer/client communications that are in furtherance of illegal or fraudulent schemes. The burden of proof for such questions is not onerous: the civil law’s preponderance of the evidence standard — in this instance, was it “more likely true than not” that Trump and Eastman had engaged in a crime?
Carter concluded it was likely that they had committed the crime of conspiracy to obstruct a congressional proceeding (i.e., to impede the January 6 joint session at which state electoral votes were to be counted and Joe Biden’s victory acknowledged). That is one of the main criminal charges brought against many of the Capitol riot defendants. Significantly, Carter did not draw any conclusions under the criminal law’s demanding burden of proof. That is, he neither made nor was asked to make a finding that there was proof beyond a reasonable doubt that Trump (or anyone else) was guilty of a crime. Again, he employed the civil-preponderance standard. Plus, Carter made his ruling on a sparse record. Trump was not a party to the lawsuit, and thus did not have counsel presenting a defense and challenging the crime/fraud claim. Clearly, it would be far more difficult for prosecutors to convict Trump of this charge in a criminal jury trial, than it was for the committee to convince a sympathetic judge that he is “probably” guilty in a civil proceeding where Trump had no opportunity to defend himself.
As for the second potential crime the committee believes can be proved, there is obvious confusion about it, which is another reason for the Justice Department to proceed warily.
Apparently, committee sources told the Times that they believe they had proof of Trump “conspiring to defraud the American people.” There is no such crime — and many politicians should be grateful for that, including several January 6 committee Democrats. (Among them are Adam Schiff, who spent a couple of years hyping the Trump/Russia “collusion” claims even though secret testimony in the Intelligence Committee over which he presided refuted this farcical partisan narrative, and Bennie Thompson and Jamie Raskin, who both baselessly claimed that electoral votes should not be counted in favor of Republican presidents. Raskin also filed a brief in the Trump impeachment trial falsely claiming that Capitol police officer Brian Sicknick — who died of strokes the day after the riot — was killed by rioters who bashed his head in with a fire extinguisher. And the committee collectively continues to broadcast the false claim that police died due to the attack — a claim repeated by Judge Carter: Trump’s effort to overturn the election “led to the deaths of several law enforcement officers.”)
The federal penal code does feature a fraud crime that is literally applicable to those who deprive others, including the public, of their “intangible right of honest services.” This, however, is such a vague and promiscuous term that the Supreme Court has essentially confined it to traditional bribery and kickback crimes. Such offenses do not appear to be implicated by the January 6 investigation.
We thus have to assume that what the committee sources and/or the Times garbled into “conspiring to defraud the American people” was actually the federal crime of conspiracy to defraud the United States — meaning fraud on a government agency, not on the public. That was the second crime that Judge Carter found had “likely” been committed. To repeat, though, the judge was not operating under the demanding criminal-law burden of proof, nor did the due-process mandates of criminal proceedings factor in.
I’ve had occasion to discuss conspiracy to defraud the government. Suffice it to say it is a notoriously slippery charge that is rightly faulted for enabling “creative” prosecutors to conjure up “crimes” that Congress has not actually codified — a constitutional problem. Indeed, we recently encountered this fraud conspiracy theory — or, more accurately, the lack of it — in connection with Special Counsel John Durham’s probe: He has alleged that the Hillary Clinton campaign concocted the absurd Trump–Russia collusion narrative and fed it into government investigative agencies; but Durham has not tried to charge these machinations as a crime by invoking the dubious charge of conspiring to defraud the government. Trump fans who have been frustrated by Durham’s prudent reluctance may soon recognize the wisdom in it.
Progressive legal scholars are already beating the drums for this charge, a favorite of Special Counsel Robert Mueller’s Trump–Russia investigation. Attorney General Merrick Garland and his top advisers would, however, have to consider carefully how deeply divisive and counterproductive it could be to bring, against a former American president, a weak charge that politically motivated prosecutors could easily lodge against future presidents and public officials.
These will be weighty questions for the Justice Department. Whatever decisions the DOJ makes, rest assured that the politically fraught and not entirely coherent meanderings of a congressional committee’s “criminal referral” will carry little if any weight.