So lawyer dopers, what is the deal with referrals from Congressional commitees.to the justice dept, such as the one handed down by the Jan 6th committee ?
Is there any weight behind them at all? Everyone goes to great pains to point out that there no guarantee this one will.lead to a prosecution, but does it bear any more weight than say a strongly worded letter from a house leader saying “person X has committed crime Y, please prosecute him, see attached evidence”
Has the justice dept ever failed to prosecute in response to one? I’m assuming this isn’t the first time they’ve ever received one (just the first time they’ve received one for an ex-president)
According to this Politico article, the referral itself won’t make much difference to DOJ, but the committee’s evidence that will also be turned over could be very significant with the prosecutors.
DOJ routinely declines to prosecute someone in response to a congressional referral.
Generally speaking, there are two types of congressional referrals.
The first type has some actual status or process. It is, I believe, limited to criminal contempt (2 USC 194) and violations of the House or Senate ethics rules (under the congressional rules). Of course, notwithstanding the statutory obligation that DOJ bring a contempt of congress matter to the grand jury, DOJ often simply ignores it (see, e.g., Eric Holder). Referrals from the ethics committees have no obligation to be pursued and often are not (see, e.g., John Ensign).
The second category are other crimes. There is no actual formal process for referral and they have no status under congressional rules or statutory law. They are really nothing more than, as you put it, “a strongly worded letter.” It is quite common for individual or groups of Congressman to make “referrals” that are routinely ignored by DOJ (but see Martha Stewart and Roger Clemens, who were referred by members of Congress for lying to Congress). And a referral by a committee, similarly, has no legal effect at all.
(You can argue that there is a third type – crimes against Congress that are not criminal contempt (e.g., obstruction or perjury). But really, what that means is that DOJ generally declines to proceed on those cases with a referral – but they don’t always pursue them with a referral and can pursue them without one. This is really just a subset of category two).
But, as @Northern_Piper noted, a congressional referral will often by accompanied by an evidentiary package which might be significant. Particularly if it includes non-public information (as, of course, there is no real obligation on DOJ to wait for a referral, so they could take appropriate action based on public information or information they developed). A competent congressional investigation might certainly put together a persuasive package for further investigation or prosecution.
Has the DOJ not done their own investigation? I suspect the professional bureaucrats will roll their eyes and say thanks we will look into it, but we already looked into it and if we could have charge someone with any likelihood of prosecution we would have already.
How is this not exactly what I was talking about?
Jack Smith, Attorney General Merrick Garland, the DOJ have already done their investigation. What new has come out of the congressional committee?
I don’t have any inside information about the state of the investigation by DOJ. All they will say is that investigations are ongoing.
Do you have a cite to demonstrate that they have already done their investigation?
What I was responding to was your comment that : “I suspect the professional bureaucrats will roll their eyes…”
That has not happened. The professional bureaucrats are very interested in the investigation performed by the committee, to judge by their request for access to the committee’s documents and fruits of the investigation. They do not appear to be treating the congressional investigation as mere political theatre, as you seem to be suggesting.
I guess the question is - what level of staffing do the respective groups have? Some articles say the Congressional committee has talked to 1,000 witnesses. No doubt a large number of people have pored over those records and transcribed them, etc.
Other article mention that part of the hold-up with Jan 6th is the sheer volume that the DoJ has to deal with. They are not just investigating the higher-ups, they are also cross-referencing and dealing with hundreds - possibly thousands - of low level offenders who trespassed on the Capitol to some extent, and prosecuting those cases. They are constrained, much of their resources are tied up dealing with this volume of cases. Congress had one focus. The DoJ has a whole country to look at.
So if the Congressional data can help with the collection and/or analysis of data so much the better. But ultimately, everything is up to the DoJ. Now they have a special prosecutor to deal with the higher-ups in the case.