Criminal referrals by members of Congress raise procedural questions
© Getty Images

It is curious there has been no discussion of the procedural anomalies of Senate Judiciary Committee Chairman Charles GrassleyCharles (Chuck) Ernest GrassleyTrump officials ratchet up drug pricing fight Dems angered by GOP plan to hold judicial hearings in October American Bar Association dropping Kavanaugh review MORE (R-Iowa) and Sen. Lindsey GrahamLindsey Olin GrahamThe Memo: Saudi storm darkens for Trump Trump changes tone on Saudi Arabia amid mounting pressure Trump rebukes Saudis, but also gives them more time MORE (R-S.C.) making a criminal referral of “Trump dossier” author Christopher Steele to the Department of Justice and FBI.

The anomalies are two-fold: the action announced Jan. 5 was taken before the committee has completed its investigation into Russian interference in the 2016 U.S. election; and the full committee did not authorize the referral. Judiciary ranking member Dianne FeinsteinDianne Emiel FeinsteinFeinstein would 'absolutely' reopen Kavanaugh investigation if Dems win Senate Feinstein’s Dem challenger: 'It’s time that we stop biding our time and biting our tongue' The Hill's Morning Report — Presented by the Coalition for Affordable Prescription Drugs — Health care a top policy message in fall campaigns MORE (D-Calif.) raised the only procedural complaint: she had not been consulted in advance of the referral.

ADVERTISEMENT

According to the letter of referral, Grassley and Graham are asking the DoJ and FBI to investigate whether Mr. Steele violated the criminal code’s provision against making false statements to federal authorities. The senators attached “a classified memorandum” relating to certain communications between Steele and multiple U.S. news outlets regarding the dossier –an unclassified version of which they said will later be released publicly.

The joint press release quotes Grassley as indicating he does “not take lightly making a referral for a criminal investigation,” but feels obliged to in any investigation which turns up evidence of a crime. Notwithstanding that assertion, the release goes on to indicate, “This referral does not pertain to the veracity of the claims contained in the dossier,” but is “for further investigation only, and is not intended to be an allegation of a crime.” Graham is quoted in the same release as suggesting “a special counsel needs to review the matter” given “the many stop signs DoJ ignored in its use of the dossier.”

Notwithstanding the two-man referral, the penultimate paragraph of the joint press release states: “It is the practice of the committee to notify the Justice Department whenever it comes across what appears to be credible evidence of a criminal violation that warrants further investigation….” In other words ordinarily, it is a determination to be made by the committee and not by two members, even if they happen to be committee and subcommittee chairmen.

The only references to referrals to law enforcement authorities in congressional rules are in the House and Senate rules regarding their ethics committees. They are authorized to refer to Federal or state authorities any possible law violations uncovered in their inquiries into possible ethical misconduct by a Member, officer or employee. But the referral must either be made by a two-thirds vote of the full ethics committee or by majority vote of the chamber involved.

Even when the issue is alleged criminal acts against Congress, as spelled out in laws relating to perjury, contempt of Congress, and obstruction of congressional proceedings (all of which require votes by the house involved), it is clear from a Supreme Court decision, quoted in a 2016 Congressional Research Service legal analysis, that Congress may not directly enforce federal law: “The   Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case…”

When, in July 2016, FBI Director James ComeyJames Brien ComeyFormer FBI lawyer speaks with House lawmakers on Rosenstein, 2016 Emmet Flood steps in as White House counsel following McGahn departure McGahn departs as White House counsel MORE announced his decision not to prosecute Secretary of State Hillary ClintonHillary Diane Rodham ClintonWatchdog org: Tillerson used million in taxpayer funds to fly throughout US Republicans cancel airtime in swing Vegas district The Democratic Donald Trump is coming MORE for her use of a private e-mail server for official business, the House Committee on Oversight and Government Reform called him to testify. Comey told the committee that, “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…..It requires the committee to say, ‘We think we have an issue here, would you all take a look at it.’ Notice he said “committee” and not just its chairman.

Oversight Committee Chairman Jason ChaffetzJason ChaffetzFox News contributor mocks Elizabeth Warren with photo at Disneyland Eric Trump blasts professor at alma mater Georgetown: ‘A terrible representative for our school’ Matt Schlapp: Trump's policies on Russia 'two or three times tougher than anything' under Obama MORE (R-Utah) and Judiciary Committee Chairman Bob GoodlatteRobert (Bob) William GoodlatteRosenstein to appear for House interview next week Fusion GPS co-founder pleads the Fifth following House GOP subpoena House Judiciary chairman threatens to subpoena Rosenstein MORE (R-Va.) subsequently sent a criminal referral letter to the U.S. attorney for the District of Columbia requesting an investigation into whether Secretary Clinton lied under oath to Congress. The referral was not approved by either committee. But even if it had been, the Justice Department ultimately has prosecutorial discretion to investigate and prosecute the matter. It did nothing.

It is unclear from the contradictory statements in the joint press release by Grassley and Graham whether they are basing their referral on “credible evidence” of a possible criminal violation by Mr. Steele or are simply using his simultaneous dealings with the FBI and news outlets as a hook for a larger probe of the agency’s motives and methods in initiating the Russia probe in 2016 (as suggested by Graham).

If the latter is the case, one must ask why the committee does not proceed to answer the questions the two senators have raised as part of its ongoing investigation. The fact that Grassley did not join Graham in calling for a special counsel to investigate the matter is probably the best indication of why the ball is being punted to DoJ in the guise of a criminal referral instead of being carried across the goal line as part of the committee’s final report on Russian meddling. If at that point it becomes clear some may have committed crimes, a referral to DoJ containing fact-based evidence would carry far more weight if backed by formal committee action.

Don Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center and former staff director of the House Rules Committee. The views expressed are solely his own.