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 GrassleyOn The Money: Unemployment debate sparks GOP divisions | Pandemic reveals flaws of unemployment insurance programs | Survey finds nearly one-third of rehired workers laid off again Unemployment debate sparks GOP divisions Tensions flare as GOP's Biden probe ramps up  MORE (R-Iowa) and Sen. Lindsey GrahamLindsey Olin GrahamThe Hill's Campaign Report: Even the Post Office is political now | Primary action tonight | Super PACS at war Graham leads Democratic challenger Harrison by 1 point in South Carolina: poll The Global Fragility Act provides the tools to address long-term impacts of COVID 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 FeinsteinDemocrats want Biden to debate Trump despite risks Mini-exodus of Trump officials from Commerce to lobby on semiconductors Doug Collins questions Loeffler's trustworthiness in first TV ad MORE (D-Calif.) raised the only procedural complaint: she had not been consulted in advance of the referral.


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 ComeyHannity's first book in 10 years debuts at No. 1 on Amazon This week: Negotiators hunt for coronavirus deal as August break looms FBI officials hid copies of Russia probe documents fearing Trump interference: book MORE announced his decision not to prosecute Secretary of State Hillary ClintonHillary Diane Rodham ClintonThe Hill's Campaign Report: Even the Post Office is political now | Primary action tonight | Super PACS at war Should Biden consider a veteran for vice president? Biden leads Trump by nearly 40 points in California: poll 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 ChaffetzThe myth of the conservative bestseller Elijah Cummings, Democratic chairman and powerful Trump critic, dies at 68 House Oversight panel demands DeVos turn over personal email records MORE (R-Utah) and Judiciary Committee Chairman Bob GoodlatteRobert (Bob) William GoodlattePress: Trump's final presidential pardon: himself USCIS chief Cuccinelli blames Paul Ryan for immigration inaction Immigrant advocacy groups shouldn't be opposing Trump's raids 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.